Eutanasia 3

EUTHANASIA, DEATH WITH DIGNITY
AND THE LAW

Euthanasia,
Death with Dignity
and the Law
HAZEL BIGGS
University of Kent, Canterbury
OXFORD – PORTLAND OREGON

2001
Oxford and Portland, Oregon
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And Finally. . . . .
Acknowledgements
I am indebted to a great many people as a consequence of writing this book.
Thankfully, nearly everybody has a view on euthanasia which has made the
research and development of these ideas fruitful and informative. Many of those
to whom I owe thanks will remain unnamed but their contributions, made
either by engaging in discussions when I needed to clarify my own thinking, or
by not pressurising me despite my repeated cries of “after the book is finished
we will. . .” have been invaluable.
The book is a transformation of my PhD thesis so I am grateful to Steve
Uglow, who supervised much of the initial research, and to both Derek Morgan
and Wade Mansell, before whom I defended my thesis and who subsequently
provided some interesting suggestions for improvement.
Paul Conaghan provided great assistance with proof reading, and was patient
in the extreme. Liz Cable and the support staff at Kent Law School have helped
to keep me going throughout long days of writing, revising, printing and pho-
tocopying, amidst teaching and administrative duties. And I could not have
produced the final text in coherent format without help from Mark Dean.
Numerous other colleagues have taken time to express an interest in the book’s
progress, and the concern and attention of my insightful and talented LLM stu-
dents has been heart-warming.
Most of all my heartfelt thanks go to Peter Biggs, and our three sons, Michael
Jonathan and Timothy, who have been long suffering silent partners in the writ-
ing process. I owe profound thanks to them, to my parents and other family
members, and not least to Ted and Vic Biggs whose support has been unflinch-
ing. The writing of this book has been an experience from which I have gained
much that will be of use in the future, but for now, the triumph is in finally
seeing it in print.
Contents
Table of Cases xi
Table of legislation xv
Introduction: Medicine Men, Outlaws and Voluntary Euthanasia 1
1. To Kill or not to Kill; is that the Euthanasia Question? 9

Introduction—Why Euthanasia? 9
Dead or alive? 16
Euthanasia as Homicide 25
Euthanasia as Death with Dignity 29
2 . Euthanasia and Clinically assisted Death: from Caring to Killing? 35

Introduction 35
The Indefinite Continuation of Palliative Treatment 38
Withholding or Withdrawing Treatment 44
The Principle of Double Effect 54
Physician Assisted Suicide 60
Mercy Killing 64
Conclusions 66
3. Consent to Treatment but Not to Death 69

Introduction—Why Consent? 69
Without Consent 70
Killing and Consent 73
Valid Consent, Freely Given? 74
Old Enough to Consent 80
Deciding for Others 82
Conclusions—A Consent Too Far? 93
4. Autonomy, Self-determination and Self-destruction 95

Introduction—Autonomous Choices 95
Choosing to Die—Suicide and Autonomy 100
Suicidal Intentions 107
Autonomous Clinical Discretion 110
Deciding to Live or Die—Whose Decision? 112
5. Living Wills and the Will to Die 115

Introduction 115
I Know My Will 118
x Contemts
This is My Will 121

I Will Decide 128
Will My Will be Done? 134
Where There’s a Will 137
Conclusions 143
6. Is Euthanasia a Dignified Death? 145

Introduction—Why Dignity? 145
Needing Dignity 146
Finding Dignity 149
Achieving Dignity in Dying 151
Dignifying Death 157
7. Conclusions: Dignified Life, Dignified Death and Dignified Law 165
Select Bibliography 175

Index 183
Table of Cases
A (A Minor), Re [1992] 3 Med LR 303 .............................................20, 23, 149
A National Health Service Trust v. D [2000] Fam Law 803 .............................1
Airedale NHS Trust v. Bland [1993] 1 All ER 821........................10, 14, 20, 24,
27–8, 31, 35–7, 41, 44–5, 49–50,
53–4, 70, 73, 84, 89, 92, 95–6, 106,
120, 124, 136, 149, 161-2, 165–6
Allan v. Mount Sinai Hospital (1980) 109 DLR (3d) 536 ...............................70
Attorney-General v. Able, In R v. Beecham, Daily Telegraph
18 February 1988......................................................................................60
A-G of British Columbia v. Astaforoff [1983] 6 WWR 322 ............................85
A-G’s Reference (No 6 of 1980) [1981] 2 All ER 1057 ................................71–2
B (Nancy) v. Hotel-Dieu de Quebec (1992) 86 DLR (4th) 385.................31, 161
B v. Croydon District Health Authority [1995] 2 WLR 294..........................130
Belchertown State School Superintendent v. Saikewicz 373
Mass 728 (1977) .......................................................................................92
Bland, see Airedale NHS Trust v. Bland
Blyth v. Bloomsbury Area Health Authority
[1993] 4 Med LR 151 ................................................................................78
Bolam v. Friern Hospital Management Committee [1957]
2 All ER 118...........................................................................53, 74–9, 88–9
Bolitho v. City and Hackney Health Authority [1998] AC 232,
[1997] 4 All ER 771 ......................................................................................79
Bonner v. Moran (1941) 126 F 2d 121 ...........................................................86
C (A Patient), Re [1991] 3 All ER 866 ...........................................................91
C (Adult Patient: Restriction of Publicity After Death),
Re [1996] 2 FLR 251 .................................................................................53
C (Adult Refusal of Treatment), Re [1994] 1 All ER 819,
[1994] 1 WLR 290 ...................................................................30, 36, 116, 126,
129–30, 139, 166
C v. S [1988] QB 135 ..................................................................................127
Canterbury v. Spence (1972) 464 2d 772........................................................86
Chatterson v. Gerson [1981] All ER 257 .......................................................76
Cruzan v. Missouri Department of Health
110 S Ct 2841, (1990); 497 US 261 (1990) ....................14, 20, 31, 37, 124, 162
Cull v. Royal Surrey County Hospital (1932) 1 BMJ 1195 .............................70
D, Re (1997) 38 BMLR 1 ..............................................................................53
Devi v. West Midlands Regional Health Authority
[1981] (CA Transcript 491).......................................................................83
xii Table of Cases
E, Re [1993] 1 Fam Law Rep 386.............................................................130–1

Estate of Dorone, In Re 517 pa3, 543 A 2d 452 (1987)..............126, 139–40, 144
Estate of Park, Park v. Park, In the [1954] P 112 ..........................................129
F (A Mental Patient: Sterilisation), Re [1990] 2 AC 1,
[1989] 2 All ER 454 ...........................................................30, 71, 84–90, 117
Frenchay NHS Trust v. S [1994] 2 All ER 403 .........................10, 28, 31, 53, 89
G (Persistent Vegetative State), Re [1995] 2 FLR 528 ........................37, 53, 120
Gillick v. West Norfolk and Wisbech AHA [1985] 3 All ER 402 .........81–2, 130
Gold v. Haringey Health Authority, The Times 17 June 1986....................77–8
H (Adult: Incompetent), Re (1997) 38 BMLR 11 ..................................41, 53–4
Hamilton v. Birmingham RHB (1969) 2 BMJ 456 .........................................70
HM Advocate v. Brady (1996) unreported ....................................................66
Home Secretary v. Robb [1995] FLR 412 ......................................................85
In the Matter of a Ward of Court [1995] 2 IRLM 401 ...................................54
J (A Minor)(Wardship: Medical Treatment),
Re [1992] 4 All ER 614 ......................................................................36, 117
Jane Doe, Re 583 NE 2d 1263 (1992) ............................................................92
L (An Adult: Non-consensual Treatment), Re [1997] 1 FCR 60 ........126–7, 139
Lamphier v. Phipos (1838) 8 C & P 475 ........................................................75
Law Hospital NHS Trust v. Lord Advocate [1996] 1 Scots
Law Times 869.........................................................................................54
Lee v. Oregon 891 F Supp 1239 (D Or 1995) .................................................63
Leigh v. Gladstone (1909) 26 TLR 139 ......................................................84–5
Mail Newspapers PLC v. Express Newspapers PLC
[1987] FSR 90...........................................................................................23
Malette v. Shulman (1990) 67 DLR (4th) 321,
[1991] 2 Med LR 162 ...................................................................140–1, 144
Matter of Conroy, 98 NJ 321, 355, 486 A 2d 1209, 1226 (1985)......................14
Maynard v. West Midlands Health Authority [1984] 1 WLR 634 ..................76
MB (An Adult: Medical Treatment), Re [1997] 2 FCR 541,
[1997] 8 Med LR 217, 38 BMLR 175........................................83, 89, 124–7,
133–4, 139
McKay v. Bergstedt (1990) 801 P 2d 617......................................................161
Moe, Re 432 NE 2d 712 (1982) .....................................................................92
Mohan [1976] 1 QB 1...................................................................................58
Murray v. McMurchy [1949] 2 DLR 442 .................................................30, 83
Nederlands Juristenblad (1994) 26................................................................62
NHS Trust ‘A’ v. M; NHS Trust ‘B’ v. H, 25 October 2000, unreported..........1
Parenthood v. Casey 112 S Ct 2791 (1992)...................................................109
Paton v. BPAS [1979] QB 276 .....................................................................127
People v. Kervorkian 447 (1997) US LEXIS 4038 *3.......................................14
Practice Note (Persistent Vegetative State: Withdrawal
of Treatment) [1996] 4 All ER 766.......................................................37, 54
Quinlan, Re (1976) NJ 355 A 2d 647, 70 NJ 10 (1976)............20, 31, 39, 93, 161
Table of Cases xiii
R (A Minor)(Wardship: Medical Treatment),

Re [1991] 4 All ER 177 ....................................................................131, 139
R v. Adams [1957] Crim LR 365 ........................................................26, 28, 55
R v. Adomako [1994] Crim LR 757, [1993] 4 All ER 935..........................73, 75
R v. Arthur, The Times 6 November 1981, (1993) 12 BMLR 1 .............26, 58–9
R v. Ashworth Hospital Authority, ex parte Brady
[2000] Lloyd’s Med Rep 355, [2000] 8 Med LR 251 ............................85, 106
R v. Beecham, Daily Telegraph 18 February 1988 .........................................60
R v. Blaue [1975] 3 All ER 446 ................................................................46–50
R v. Brown [1993] 2 WLR 558 ..................................................................71–2
R v. Carr, The Sunday Times 30 November 1986 ....................................26, 55
R v. Cheshire [1991] 3 All ER 670 .............................................................46–7
R v. Cox (1992) 12 BMLR 38 ...............................................10, 27–8, 31, 35–6,
56, 65–6, 159
R v. Donovan [1934] 2 KB 498..................................................................71–2
R v. Flattery (1877) 2 QBD 410 ...............................................................73, 75
R v. Gibbons and Proctor (1918) 13 Crim App Rep 134 ................................51
R v. Hogan (1973) 59 Crim App Rep 174......................................................72
R v. Holland [1841] 2 Mood & R 351 .....................................................48, 50
R v. Instan [1893] 1 QB 450..........................................................................52
R v. Jordan (1956) 40 Crim App Rep 152 ..................................................46–9
R v. Malcherek and Steel [1981] 2 All ER 422 ......................................21–2, 49
R v. Mansfield Justices (ex p Sharkey) [1985] QB 613,
[1985] 1 All ER 193 ..................................................................................72
R v. McKechnie and Others (1992) 94 Crim App Rep 51 .........................48, 50
R v. Moloney [1985] AC 905 ........................................................................28
R v. Nedrick [1986] 3 All ER 1 ............................................................28, 56–8
R v. Pittwood (1902) 19 TLR 37 ...................................................................52
R v. Potter, The Times, 26 July 1963 ............................................................21
R v. Secretray of State for Social Services ex p Hincks
[1992] 1 BMLR 93 ..................................................................................117
R v. Smith [1959] 2 All ER 1934 ................................................................46–7
R v. Smith [1979] Crim LR 251 ...............................................................30, 85
R v. Steane [1947] 1 All ER 813 ....................................................................58
R v. Stone and Dobinson [1977] QB 354, [1977] 2 All ER 341 .............30, 52, 85
R v. White [1910] 2 KB 124 .....................................................................46, 65
R v. Wilkinson, The Times 19 April 1978................................................30, 85
R v. Williams [1923] 1 KB 340 ......................................................................73
R, Re (1992) Fam 11.....................................................................................82
Richmond v. Richmond (1914) 111 LT 273...................................................83
Rodriguez v. A-G of British Columbia [1993] 3 WWR 553 ..........31, 107, 150–1
Rogers v. Whitaker (1992) 67 ALJR 47 .........................................................79
S (Adult: Refusal of Medical Treatment),
Re [1992] 4 All ER 671 ....................................................103, 124–7, 139–40
xiv Table of Cases
Salgo v. Leland Stanford Junior University Board of Trustees

317 P 2d 170 (Cal 1957) ............................................................................76
Schloendorf v. Society of New York Hospital
(1914) 105 NE 92 ................................................................30, 36, 69–70, 95
Secretary of State for the Home Department v. Robb
[1995] 1 All ER 677.................................................................................106
Sidaway v. Bethlem Royal Hospital Governors
[1985] 1 All ER 643 ..................................................36, 53, 70, 75–9, 95, 104
SL (Adult Patient: Medical Treatment), Re [2000] 2 FCR 452........................89
Smith v. Smith (1958) 317 SW 2d 275 Supreme Court of Arkansas.................21
Smith v. Tunbridge Wells Health Authority [1994] 5 Med LR 334 .............78–9
St George’s Healthcare Trust v. S [1998] 3 All ER 673 .................................103
State of Washington et al v. Glucksberg et al S Ct 2258 (1997) ...............14, 108
Swindon and Marlborough NHS Trust v. S [1995] 3 Med LR 84...................53
T (Adult: Refusal of Treatment), Re [1992] 4 All ER 649,
[1992] 2 FLR 458 ....................................................30, 36, 44, 92, 96–8, 103,
105, 111, 116, 120, 124–8,
131, 136, 139–40, 166
Taylor v. Little (1992) 95 Crim App Rep 28 ..................................................72
Vacco et al v. Quill et al 117 S Ct 2293 (1997) ........................................14, 108
W (A Minor)(Mecical Treatment), Re [1992] 4 All ER 627........44, 82, 131, 139
Washington v. Glucksberg, see State of Washington et al v.
Glucksberg et al
Werth v. Taylor (1991) 474 NW2d 426 .........................................126, 140, 144
Whitehouse v. Jordan [1981] 1 WLR 246 ......................................................76
Wilson v. Pringle [1986] 2 All ER 440......................................................71, 86
Table of Legislation
EUROPEAN
Convention on Human Rights and Biomedicine 1996..................................149
European Convention on Human Rights ......................................................89
NATIONAL
Australia
Natural Death Act 1983 .............................................................................115
Rights of the Terminally Ill Act 1996............................................14, 62–3, 108
Canada
Charter of Rights and Freedoms
s 7 ..........................................................................................................151
s 15(1) ....................................................................................................151
Criminal Code
s 241(b)...............................................................................................150–1
United Kingdom
Abortion Act 1967......................................................................................108
Children Act 1989
s 2(b)........................................................................................................24
s 4 ............................................................................................................80
s 44(4)(c) ..................................................................................................24
Enduring Powers of Attorney Act 1985 .......................................................120
Family Law Reform Act 1969
s 8 ............................................................................................................82
s 8(1)........................................................................................................80
s 8(2)........................................................................................................80
s 8(3) ....................................................................................................80–1
Human Rights Act 1998 ...............................................................................89
Infanticide Act 1938 .....................................................................................25
Mental Health Act 1983........................................................................83, 130
s 57 ........................................................................................................129
s 58 ........................................................................................................129
s 63 ..........................................................................................................85
Offences Against the Person Act 1861...........................................................74
s 18 ..........................................................................................................72
s 20 ..........................................................................................................72
s 47 ..........................................................................................................72
xvi Table of Legislation
Suicide Act 1961.........................................................................................100

s 2 ..........................................................................................................109
s 2(1).................................................................................................60, 105
United States
Act Relative to Death with Dignity for Certain Persons Suffering
Terminal Illness 1992..............................................................................150
Death with Dignity Act 1992 ......................................................................150
Death with Dignity Act 1994........................................................14, 63–4, 150
Humane and Dignified Death Act 1988.......................................................150
Kansas Statutes 1971....................................................................................20
Natural Death in California Act 1976 ..................................................115, 126
Natural Death Act of California 1991.........................................................150
Patient Self-Determination Act 1990 ...........................................................115
Introduction
Medicine Men, Outlaws and
Voluntary Euthanasia
During the final weeks of writing this book the news media contained yet
another flurry of stories concerning euthanasia and end-of-life decisions. It was
reported from Holland that after many years of judicial toleration euthanasia
was finally to be formally legalised, while in Britain, a man who admitted on a
radio talk show that years previously he had assisted his terminally ill mother to
die, was sought and questioned by the police prior to the exhumation of his
mother’s body. Shortly before, Eastenders, a well known BBC soap opera, ran a
story where, despite her religious and moral reservations, one of the regular
characters had assisted her best friend to die and was left to cope with the con-
sequences. The closing months of 2000 also witnessed three cases where the
courts were required to clarify the lawfulness of clinical end of life decisions in
the light of the implementation of the Human Rights Act 1998.1 It is a familiar
pattern where interest in euthanasia never seems to wane and, fuelled by exam-
ples such as these, the debate remains as polarised as ever. Taking into account
the level of interest and the polarisation of views expressed, this book seeks to
analyse the issues from the perspectives of law, medicine and ethics to consider
whether legal reform is necessary to enable people to die with dignity.
The ability to choose, and have those choices respected, is revered as a way of
maintaining control, which can in turn help to preserve personal dignity in
dying. Voluntariness is a central element here, since choice dictates volition and
volunterism denotes self-determination, all of which are associated with dig-
nity. But does that mean that voluntary euthanasia should be legally permissi-
ble? And, if it were no longer outlawed, would euthanasia in fact offer an
appropriate mechanism by which people could exercise choice over the time and
circumstances of their dying?
Recent decades have witnessed social changes that have encouraged and
empowered us to select options according to personal preferences in every other
area of social life. Nowhere is this more apparent than in the realm of health
care, where British patients have been transformed into clients, who consume
health care services and rightly demand information along with their perceived
entitlements. Heightened public awareness of the scope, successes and failures
of medicine, have led to consultation and involvement in medical decisions
1
A National Health Service Trust v. D [2000] Fam Law 803, and NHS Trust ‘A’ v. M; NHS Trust
‘B’ v. H, Family Division (Dame Elizabeth Butler-Sloss) 25 October 2000, unreported.
2 Introduction
becoming the norm and increasingly regarded as a right. In this environment the
ability to make choices about health and welfare has become a legitimate
expectation. Yet, even where death is imminent and inevitable, and after care-
ful consideration of all the alternatives, it is not lawful to seek and receive a
deliberate medical intervention that will result in death.
Concentrating on the rights and responsibilities of patients and health care
professionals, this discussion focuses on medical decision-making at the end of
life. Specifically, what decisions may legitimately be taken, when, and by whom?
Choice is a central theme, especially where a person’s ideal choice might be to
die sooner than would be considered natural by her professional and emotional
carers. At present a patient’s request for a specific course of action as a preferred
medical option is futile. Any medical practitioner carrying out that wish will be
outlawed as a result, hence clinical and legal boundaries prevent deliberate
assistance in the exercise of terminal choices. Dignity dictates however, that it is
not only important to be able to make relevant choices for oneself. The ability
to influence the choices made by others who have the power to determine the
extent and nature of the medical treatments that may or may not be delivered,
is also crucial.
The argument is not necessarily one about institutionalising euthanasia, or
providing bureaucratic mechanisms by which it can be legitimated. What is
more significant is recognition and respect for considered choices, while avoid-
ing sanctions for compassionate health professionals who voluntarily opt to
assist. The chapters of this book will therefore consider the process and context
of end-of-life decision-making, from the perspectives of clinicians, patients and
others who will be affected.
In the past the question of inappropriately prolonging life was not a consid-
eration. Rather, people would have died for want of effective medical treat-
ments. Hence many of the dilemmas presented here arise only because medical
progress has generated situations that would previously have resolved them-
selves spontaneously and rapidly. In her analysis of the relationship between
law and medicine, Sheila McLean suggests that advances in medicine have
inevitably resulted in the need for serious moral choices to be made, and that
when medicine fails to provide a socially acceptable answer many of these are
referred to the law for solutions. Within this it becomes apparent that perhaps
neither law nor medicine are the appropriate disciplines to resolve the profound
dilemmas emanating from advances in biotechnology. McLean argues that:
“the approach of the courts is characterised by sophistry, thereby avoiding asking and
answering the ultimate question—namely what are the true values and principles
which society should apply to the new reality”.2
In terms of decision-making at the end of life the new reality is currently less well
defined than we might imagine. So, to paraphrase Peter Singer, we now need to
2 S A M McLean, Old Law, New Medicine: Medical Ethics and Human Rights (London, Pandora
Press, 1999) at 158.

Introduction 3
rethink life and death in order to provide satisfactory answers to the moral
choices presented.3
Euthanasia is associated with a range of different practices and situations, not
all of which apply to the present discussion. Voluntary euthanasia and the value
of voluntary autonomous choices, whether taken in advance or contemporan-
eously, provide the central focus, so that the debate revolves around the making
of autonomous medical decisions in a changing medical environment. Those
who are physically able, and hold no moral objections, might of course con-
template suicide. But suicide is rarely regarded as dignified and a more certain
clinical route would be preferable to many.
To achieve this, attention must be paid to enabling people to make decisions,
to having those decisions acknowledged and recorded, and to ensuring that they
are accepted and acted upon when they become applicable. Simultaneously, it
must be recognised that people can and do change their opinions depending on
the circumstances in which they find themselves. For example, people may have
significantly different views about death and dying when they are healthy than
when faced with the imminent reality.4 It is demonstrable that terminally ill
people do not commit suicide or refuse life prolonging treatments in great num-
bers, a fact that is sometimes cited in arguments opposing the use of advance
directives if upholding their provisions might result in death.5 Of course the
studies cited may show that people change their minds, suggesting that over
reliance on advance directives could be dangerous in some circumstances. But
few would contend that the terms of a living will should be upheld if there was
doubt about its validity or applicability in the circumstances that have arisen.
Nevertheless, there are many situations where the value of a living will must
surely outweigh these possible disbenefits. Where, for example, a terminally ill
person becomes physically unable to kill herself, despite a confirmed desire so to
do, the only available choice is to refuse life prolonging treatment rather than to
continue a futile existence. That is to die slowly, or to die more slowly.
Alternatively, it has been suggested that even where people have not needed to
resort to the provisions of their living will, they are empowered by the know-
ledge that they could, and that they have had the opportunity to decide for them-
selves.6 Effectively they feel that they are in control of their fate and then choose
to play it out according to their own needs. None of these instances negates the
necessity to maximise every person’s ability to choose and to have those choices
respected, even if they change over time.
Predicated on ideals of personal autonomy and self-determination, all choices
that permit recipients of health care to feel in control of their destinies,
are essential to human dignity. It is clear that the law surrounding consent to
3 P Singer, Rethinking Life and Death (Oxford, Oxford University Press, 1995).
4 C Ryan, “Betting Your Life” in D Dickenson et al (eds.), Death Dying and Bereavement 2nd
edn. (London, Sage, 2000) at 291.
5 Ibid.
6
T E Quill, Death and Dignity. Making Choices and Taking Charge (New York, Norton, 1993).
4 Introduction
medical treatment, and legal recognition of living wills has developed in ways
designed to endorse and protect individual rights to autonomy and self-
determination. In recent years autonomy and self-determination have become
accepted as the foundations of ethical medical practice, but they must be
approached cautiously to avoid imposing additional burdens on patients who
have enough to bear. Greater recognition and use of living wills could offer
security and enhance the options available to patients at the end of life, but ade-
quate safeguards will be needed to ensure that such devices are properly valid-
ated and applied in order to protect against potential abuses. Chapters four and
five will assess the value of autonomy and living wills in the wider debate about
euthanasia and dignity in dying.
Many people regard euthanasia as the ultimate expression of individual
autonomy and self-determination. Its proponents contend that a relaxation of
the law to permit euthanasia, or clinically assisted dying in appropriate circum-
stances, would relieve suffering and enhance human dignity, by enabling people
to maintain control of their lives until their final moments. Yet English law has
steadfastly declined to adapt, and calls for permissive legal reform have been
resisted in favour of the present ad hoc common law approach.
Alexander McCall-Smith advances a scholarly defence of this position, argu-
ing that the current legal position is sufficiently flexible to incorporate ample
scope for a benevolent approach to be adopted where appropriate.7 Certainly it
is advantageous that the criminal law judges each case according to its particu-
lar facts and merits, and that a range of defences exist, which can take into
account a range of mitigating circumstances through the murder/manslaughter
distinction. McCall-Smith argues however, that:
“even intentional killing, then, may be treated with relative leniency if the accused’s
circumstances at the time of the act trigger sufficient sympathy on the part of the pros-
ecution or jury and can be fitted into one of the mitigating categories”.8
There is the rub. Any leniency permissible is only relative, a perpetrator might
receive a lesser sentence, but will be sentenced nonetheless. Furthermore the
accused’s conduct must first be manipulated to fit the mitigating criteria
accepted by the law, diminished responsibility being the most obvious. While
such a defence may be available and appropriate in some cases of euthanasia,
particularly in a domestic setting, it is unlikely to be either suitable or attractive
where medical professionals are concerned.
Further flexibility is endorsed through the availability of the doctrine of dou-
ble effect, where actions can be seen to cause both wanted and unwanted effects.
If the action in question is the administration of strong palliative medication
to keep a dying patient comfortable, the unwanted effect may be the incid-
ental suppression of respiration resulting in the patient’s death. Here the factual
circumstances can be presented in such a way that the intentions of the person
7
A McCall-Smith, “Euthanasia: the Strengths of the Middle Ground”, (1999) 7 Med LR 194–207.
8
Ibid, at 198.
Introduction 5
giving the medication appear to be focused only on the good consequences,

while denying the bad, even though these were clearly anticipated. The cause of
death can then be attributed to the underlying medical condition, despite the
fact that death would not have occurred at that precise time, but for the thera-
peutic intervention. No blame would be likely to be attributed in these circum-
stances, but such outcomes cannot be relied upon with any certainty. Cases
where these principles have been used cause tremendous anxiety and uncer-
tainty for those who have been impugned. And, while an acquittal may be forth-
coming if the doctrine of double effect provides an efficient shield and there is
sufficient sympathy in the courtroom, the alternative is always a possibility.
It is the very flexibility that many find so appealing about the criminal law,
that gives rise to such confusion and uncertainty when medical professionals
and patients encounter euthanasia. Doctors are entitled to ask, exactly when
will double effect be an acceptable defence, and how do we know? There is no
certain way to respond; theory and practice make uncomfortable collaborators
in this area. Sophistry and creative legalism may be effective in the court room,
but medical practice cannot always be tailored to take advantage of them.
Further inconsistencies also exist. The law permits doctors to withdraw futile
treatment from those who are incapable of expressing any view specifically to
facilitate their demise. Competent people are permitted to decline medical treat-
ment, even if the result will be their death. Yet action that deliberately causes
death is outlawed.
Legislation permitting euthanasia, or at least some forms of assisted dying,
would introduce more certainty for all concerned, but great skill would be
required in the drafting and extent of any such permissive reform. Calls for legal
euthanasia must be carefully framed. It is not only important to increase the
potential for greater choice and opportunities to terminate life according to
individual voluntary preference, it is also vital to guard against the inappropri-
ate use of “do not resuscitate orders” and failures to treat due to inadequate pro-
vision of resources. If euthanasia were to be allowed in the name of dignity,
autonomy and choice, it is essential that it is also wholly voluntary.
Accordingly, this book seeks to explore a “pro-choice” option where every able
person is permitted to choose the time and manner of their own dying if they
want to. In the present legal climate this is impossible and those who might seek
dignity through active assistance in dying are deterred. A central issue is not
whether life should end, but the nature of decision-making at the end of life;
who should take the decision and how?9
The discussion here is therefore concerned primarily with medical decision
making rather than advocating that a claim of compassionate motivation
should automatically absolve anyone who terminates the life of another from
responsibility. This is an area where people could be vulnerable to dangerous
9
These issues are discussed at length in H Kuse, “The Case for Active Voluntary Euthanasia”
(1986) 14 Law Ethics and Health Care 145.
6 Introduction
abuses, and it is appropriate therefore that any move towards permissive legal
reform should incorporate professional legitimacy. Death and dying are
presently regarded as the domain of medical science and easing the passing from
dying into death is an accepted part of a doctor’s duty, so it would seem apt for
that legitimacy to be conferred upon healthcare professionals. Further, there is
some evidence to suggest that assisted death is regarded as more dignified if
attended by a qualified medical professional.10 In supporting that stance the
arguments presented here may be open to criticism on grounds of enhancing
medical power. This is not the intention, but it must be recognised that a bal-
ance needs to be struck between permitting patients the choices they seek, and
protecting the vulnerable from abuse. This may only be possible through pro-
fessional guidelines and legal regulation.
Today euthanasia could be described as the ultimate doctor’s dilemma.
Modern medicine promotes honest and responsive relationships between doc-
tors and patients, founded on autonomy and trust, but at the end of life doctors
are constrained by law from assisting their patients to die, even if that is the con-
sidered wish of the patient concerned. Alongside that is a dilemma associated
with concerns that patients might demand a right to assistance in dying, either
now or in the future, and that this would alter the nature of the doctor/patient
relationship.11 Arguably that danger already exists. Medical men and women
may not act to hasten death, even at the considered and voluntary request of
competent patients. Any who respond to impatient pleas for help are outlawed
and risk their own dignity through potential professional and legal sanction.
Whether it is possible to achieve dignity in dying, with or without euthanasia
and with or without legal reform is the subject of this book. The chapters are
designed to build upon one another, so that concepts and case examples are
developed through repeat analysis and subtle differences in emphasis. While
pursuing the core debate about euthanasia each chapter can stand alone, so that
scholars interested in the law and ethics of consent, or the issues associated with
living wills for example, should be able to dip into those chapters and find them
informative and stimulating, even if they are not seeking a detailed knowledge
of issues associated with euthanasia, death and dying. Euthanasia is contextual-
ised through discussions of clinical decision-making at the end of life from the
perspectives of law, medicine and ethics to provide an overview of the complex
issues involved. Some technical discussion of the significant legal principles is
essential to construction of the legal argument and as a result chapters two and
three conduct a detailed examination of the law of homicide and consent
respectively. Despite the complex legal analysis, both are intended to be acces-
sible to non-law readers. Accordingly, these discussions are set against the back-
drop of clinical scenarios and the factual backgrounds of the cases discussed, so
10 W Macdonald, “Situational Factors and Attitudes Toward Voluntary Euthanasia” (1998) 46
Social Science and Medicine 73–81.

11 L Emanuel (ed.), Regulating How We Die: The Ethical, Medical and Legal Issues Surrounding
Physician Assisted Suicide (Harvard, Harvard University Press, 1998).

Introduction 7
that the concepts are located within relevant practical situations. A hypotheti-
cal patient is occasionally referred to for this purpose. The female gender is used
as a reference point throughout in an attempt to break down stereotypical
assumptions.
This text aims to expose the inconsistencies and ambiguities associated with
the present legal approach to end-of-life decision-making in order to suggest
that legal reform might provide a more consistent response. It is inconsistent to
permit terminal decisions to be made about people who cannot speak for them-
selves or make a considered choice, while those who actively and competently
seek medical assistance for a permanent resolution are prohibited from so
doing. Similarly, there may be little dignity in a slow death, either through incur-
able or terminal disease, or by the deliberate withholding of nutrition from an
incapacitated person. Legal reform might aid consistency so that voluntary
euthanasia could offer the opportunity for death with dignity, but in the mean-
time, dignity will always be compromised while the law prohibits active inter-
vention in dying.
1
To Kill or Not to Kill; is that the
Euthanasia Question?1
“Every day, rational people all over the world plead to be allowed to die.
Sometimes they plead for others to kill them. Some of them are dying
already . . . Some of them want to die because they are unwilling to live in
the only way left open to them”.2
INTRODUCTION — WHY EUTHANASIA ?
Advances in medical science now allow both living and dying to be prolonged,
a fact which has raised awareness of issues relating to death and dying in the
community at large, popular fiction and the medical professions. Dworkin’s
sentiments above reflect a commonly held belief that modern medicine can com-
pel people to endure life beyond what they perceive to be dignified bounds.
Statistical evidence also supports the popular perception that some doctors do
sometimes engage in excessive treatment to prolong the lives of the terminally
ill.3 As a result, recent years have seen repeated calls for legal reform to permit
euthanasia and assisted death.4
In modern Western culture death has traditionally been a private affair occur-
ring behind closed doors and with minimal observation or discussion. Yet in
Britain today approximately seventy per cent of all deaths occur under the
bright lights of hospital where the natural processes of dying are often trans-
formed into a medical event and subordinated to technology. Advanced scien-
tific medical knowledge has increased the average life expectancy in the United
Kingdom by twenty five years during this century.5 As a result the numbers of
people aged eighty and over rose nearly threefold between 1951 and 1988, from
0.7 million to two million. Increasing longevity by this magnitude is expected to
1 This chapter has formed the basis of an article entitled, “Euthanasia and Death with Dignity:
Still poised on the Fulcrum of Homicide” [1996] Crim L R 878–88.

2 R Dworkin, Life’s Dominion (London, Harper-Collins, 1993) at 179.
3
See for example, J Brody, “Doctors Admit Ignoring Patients Wishes” The New York Times Jan
1993, which reports on a survey conducted by the American Journal of Public Health in January
1993.
4
G Williams, “Euthanasia” (1973) 41 Medico-Legal Journal, R Veatch, Death, Dying and the
Biological Revolution (New Haven, Nash Publications, 1976), I Kennedy, “Euthanasia”, in A Grubb
(ed.), Choices and Decisions in Health Care (Chichester, Wiley 1993).
5 Social Trends, Table 1.2, Age sex structure of the population (London, HMSO, 1990) at 24.
10 To Kill or Not to Kill
cause a rise in the numbers of new cancer patients of 0.5 per cent a year over the
next twenty years,6 and the numbers of those suffering from chronic and in-
curable disease will grow proportionately. Alongside this, growing awareness of
patient’s rights to self-determination, has stimulated public, academic, medical
and legal debate about euthanasia, assisted dying and treatment withdrawal.7
Central to this discourse is the dilemma encountered by doctors attempting to
provide appropriate care while respecting patient autonomy. Medical decisions
in the terminal stages of life are frequently questioned by patients and their rel-
atives, while the options available to the personnel responsible for those deci-
sions are strictly defined by the law. As a consequence, the legal system is
repeatedly being called upon to define the boundary between patient’s rights
and doctor’s responsibilities with regard to potentially life-limiting treatment
decisions.8 The following hypothetical case illustrates many of the issues
exposed when modern medicine views death as defeat, and strives to maintain
life at all costs. Just imagine a scene of impending despair at a hospital near by.
An anxious relative sits at the bedside of a hospital patient expecting the immi-
nent arrival of the Grim Reaper and the ultimate departure of a loved one. But
the deathly visitation is not forthcoming and the patient lingers on interminably.
The prospect of recovery is negligible but the expectation of death recedes with
the passage of time. Eventually, it is apparent that medical technology has
exceeded its ability to preserve life and has embarked on an odyssey of pro-
longing the dying process.
The options available for the continuing care and treatment of this patient are
readily apparent. She can be maintained indefinitely in her present condition, or
she can be allowed, or enabled to die. Sadly however, the availability of these
options is limited and constrained by both social mores and the criminal law.
The implications for the patient, her relatives and dependants, the medical car-
ers and for the allocation of scarce resources are profound and emblematic of
the experiences of people everywhere. Her dilemma raises legal, social, ethical
and medical questions to which there are no easy solutions. Should she be kept
alive as long as technology allows? Is it ethical to keep her alive just because we
can, or can we morally let her die? Can her family insist that she is kept alive or,
conversely, that her life is not maintained? What are the legal rights of the
patient and her family? What is the responsibility of the clinicians providing
medical care? Is it legal for care to be discontinued? Can the patient herself influ-
ence the decisions taken regarding her future medical care?
Questions like these are confronted every day by real people around the
world. Those involved may encounter their personal dilemmas due to terminal
6 Review of National Cancer Registration System, Series MBI, no. 17 (London, OPCS, 1990).
7 The level of interest in euthanasia and assisted death in order to avoid prolonged dying is illus-
trated by the fact that Derek Humphry’s book, Final Exit (Oregon, Hemlock Society, 1991), was
listed as number one in the New York Times list of best selling self help books.
8 Examples of these include R v. Cox (1992) 12 BMLR 38, Airedale NHS Trust v. Bland [1993]
1 All ER 821, and Frenchay NHS Trust v. S [1994] 2 All ER 403.

Introduction Why Euthanasia? 11
or incurable disease, the effects of trauma, or simply the degeneration associated

with old age. How they came to occupy their present position is often relatively
unimportant compared with what happens to them next. Today it is common-
place for people to be kept alive or brought back from the brink of death where
in the past they would have died. But what kind of life are they living and how
can their carers respond? The answer was considered by the Institute of Medical
Ethics Working Party on the Ethics of Prolonging Life and Assisting Death
which reported that,
“The lives of an increasing number of patients, predominantly but by no means all
elderly, are now being prolonged by modern medicine in states of coma, severe inca-
pacity, or pain they consider unrelievable and from which they seek release. Doctors
in charge of such patients have to decide not only whether they are morally bound to
continue with life-prolonging treatment, but also, if no such treatment is being given,
whether and in what circumstances it is ethical to hasten their deaths by administra-
tion of narcotic drugs”.9
For these patients, as for the hypothetical patient depicted above, living may
amount to little more than survival. Life has been saved, but only because dying
has been prolonged, and the quality of that life is questionable. Crucial ques-
tions raised by this situation concern exactly how life and death are defined.
More specifically, is our understanding of these concepts rigid or must it be flex-
ible in the face of rapid medical and technological advancement? Peter Singer
argues persuasively that “the traditional ethic will be unable to accommodate
the present demand for control over how we die”.10 The logic of his argument
is compelling and suggests that not only must our understandings of life and
death be revised, but also that the law should be reshaped in response.
Certainly the ability to preserve life despite trauma and terminal disease, has
resulted in more people demanding the right to die with dignity rather than
endure the perceived indignity of a dependent existence.11 Human dignity how-
ever is a nebulous concept amenable to a range of interpretations. In the context
of the present debate the close association between euthanasia and death with
dignity reflects the contemporary emphasis on self-determination as an expres-
sion of individual autonomy. In more classical, Kantian, terms, respect for the
autonomy of all rational beings demonstrates the intrinsic value of each indi-
vidual and the esteem and inherent dignity of which each is worthy. Euthanasia
in its various forms is one mechanism frequently promoted as a means of main-
taining autonomy and achieving death with dignity. However, whether dignity
can be achieved through euthanasia depends on the individual circumstances of
each case and on how euthanasia is defined.
9
(1990) 336 The Lancet 610.
10
P Singer, Rethinking Life and Death (Oxford, Oxford University Press, 1995) at 148.
11
Opinion polls suggest that, because of fears of prolonged dying, public support for euthanasia
has increased from about 50% in the 1960s to approximately 75% in 1992. See, T M Helme,
“Euthanasia Around the World” (1992) 304 British Medical Journal 717.
Broadly the word euthanasia means “a good death” as derived from the
Greek eu, meaning well or good, and thanatos, meaning death. Contemporary
understandings of the term imply the bringing about of a painless and gentle
death, particularly in respect of those suffering from painful and incurable dis-
ease. Definitions of euthanasia include distinctions between active and passive
responses, which are drawn according to the manner in which death is procured
and relate closely to the legal understanding of act and omission. Here a posi-
tive action constitutes an act and a failure to act amounts to an omission. For
example, selective non-treatment, where life-prolonging treatment is with-
drawn or withheld is characterised as passive euthanasia because death appar-
ently results from a lack of positive action. The absence of a deliberate positive
action where, for example, death is a consequence of the doctrine of double
effect12 means that this too is considered as a form of passive euthanasia. The
practical and ethical distinctions between them will be discussed in detail in
chapter two alongside similar issues that arise in relation to active euthanasia or
mercy killing, described as the intentional killing of a person with benevolent
motives. Assisted suicide, where one person offers another the assistance
required to bring about her own suicide, is also sometimes described as a form
of active euthanasia and is highlighted as such in chapter two.
Euthanasia is sometimes also characterised as voluntary, non-voluntary and
involuntary, where voluntary denotes that it is performed with the consent of
the recipient. Non-voluntary euthanasia occurs where the person concerned has
been unable to express an opinion, usually because she lacks the capacity so to
do, but others consider that it is in her best interests to end her life at this time.
Within this framework involuntary euthanasia occurs where the recipient has
not agreed to the procedure and is an unwilling participant. This application of
the word euthanasia is associated with the genocidal activities of the Nazi
regime and the heinous crimes committed by Dr Harold Shipman and these
associations are often at the root of those objections to euthanasia which regard
it as the top of a very slippery slope. Of course this is a fallacious classification
since the term euthanasia implies that it is in the person’s expressed interests to
die and that they are compliant.13 If the person concerned is unwilling to die it
seems reasonable to assume that their preference is to continue living, hence any
action to bring about their death would amount to murder or some other form
of unlawful killing rather than euthanasia. As the emphasis of this book is on
medically assisted voluntary euthanasia as a means of securing death with dig-
nity by the avoidance of futile suffering and the maintenance of personal con-
trol, voluntary and non-voluntary euthanasia will represent the primary focus
of this analysis in support of a workable proposal for legal reform.
12 This is the situation which occurs as a recognised side effect of palliative medication. It will be
discussed in detail in ch. 2.

13 For a discussion see Mary Anne Warren, Moral Status: Obligations to Persons and Other
Living Things (Oxford, Clarendon Press, 1997) at 187.

Several unsuccessful attempts have been made to reform the law and legalise
euthanasia in Britain. For example, in 1936 the Euthanasia Bill provided for a
system of prior notification whereby adult patients (then classified as persons
over twenty-one) suffering from terminal or incurable disease would be permit-
ted to sign a form requesting euthanasia. Two witnesses were required at the
signing and the form would then be scrutinised by a referee who was authorised
to interview the patient and all other interested parties. After that the matter
would be passed to a court which would be authorised to issue a certificate per-
mitting euthanasia to be performed by a doctor in the presence of witnesses. The
court was empowered to examine the evidence and decide whether or not the
granting of a certificate was appropriate.
The Voluntary Euthanasia Bill 1969 would have allowed euthanasia for
patients aged over twenty-one who requested it. Under this Bill a system was
proposed whereby if two doctors were satisfied that the patient was suffering
from an illness which was serious enough to be “incurable and expected to cause
him severe distress or render him incapable of rational existence” they could be
authorised to perform euthanasia. Several Bills in the 1970s14 attempted to pro-
vide incurable patients with rights to receive pain relieving drugs in quantities
which could induce unconsciousness. Such a right would in practice amount to
little short of assisted suicide as the calculation of the dosage necessary to induce
loss of consciousness would necessarily be imprecise and death a likely conse-
quence. In 1991 the Euthanasia Bill, which would have allowed doctors to pro-
vide active euthanasia to incurable patients who requested it, was introduced.
Despite a great deal of publicity and support from a parliamentary euthanasia
group, this measure met the same fate as the others and ultimately failed to gain
the force of law.
By contrast a Private Members Bill entitled Medical Treatment (Prevention of
Euthanasia) Bill was introduced into the House of Commons in December 1999
with the intention of making it unlawful for treatment to be withdrawn or with-
held with the intention of causing or hastening death. Its introduction by Ann
Winterton MP followed media concerns about reports that some elderly and
disabled patients were dying as a result of receiving inadequate care in hospitals
and homes. The Bill aimed to address the perceived need of the old and vulner-
able to be reassured that they would receive proper medical care at the end of
life and followed a flurry of media reports concerning “do not resuscitate
orders” apparently imposed upon patients without their knowledge or con-
sent.15 It failed to progress beyond the second Parliamentary reading.
Until very recently there was no legal right to euthanasia in any western juris-
diction. The Netherlands was frequently quoted as providing an example of
legally permissible euthanasia, but until the end of 2000 euthanasia16 remained
14 Known as the Incurable Patients Bills.
15 M Hickman, “Tory Proposes Anti-Euthanasia Bill”, 9 December 1999, PA News.
16 Euthanasia is defined in the Netherlands as any behaviour carried out with the “victim’s” con-
sent, which causes that person’s death.

proscribed in the Netherlands and was only permitted subject to strict proce-
dural guidelines and the efficacy of a defence of necessity.17 This position has
now been regularised. The position is similar in Switzerland and the German
Republic, where assisted suicide is practised but only in extremely limited and
strictly controlled circumstances.18
In Australia’s Northern Territory legislation was enacted in 199619 to permit
medically assisted suicide. Four patients successfully exercised the rights
granted by the Act and were helped to die by their doctor before the legislation
was challenged in the Supreme Court of Australia. The Rights of the Terminally
Ill Act 1996 has now been overruled by the federal Parliament.20 In the American
state of Oregon legislation was passed in 1994 permitting physician assisted sui-
cide.21 Though subsequently held to be unconstitutional by a federal court, it
became the subject of various appeals and was eventually narrowly re-enacted.
Away from legislation, the common law position has been extensively
reviewed in Britain and America. The issue of the right to die by assisted suicide
was given comprehensive consideration by the American Supreme Court in the
cases of State of Washington et al v. Glucksberg et al22 and Vacco et al v. Quill
et al.23 The cases concerned whether or not New York State’s ban on assisted
suicide amounted to a violation of the Fourteenth Amendment’s Equal
Protection Clause. At first instance it was held not to, but that decision was
reversed on appeal in a judgment based on the fact that different treatment was
being accorded to those seeking to end their lives by self-administering pre-
scription drugs than was available to those who declined therapeutic life sup-
port. The respondents argued that there was no relevant distinction between
refusal of life support and assisted suicide and therefore equal treatment ought
to be offered to each group.
The Supreme Court relied upon the well established distinction between on
the one hand, allowing a person to die because they have declined further treat-
ment and on the other, causing them to die by administering drugs.24 The fact
that the drugs are self-administered is not relevant to this distinction and the
crucial test is one of causation. When a person dies because treatment is not
started or is withdrawn it is the underlying pathology which causes death.
17 See J Keown, “The Law and Practice of Euthanasia in the Netherlands” (1992) 108 Law
Quarterly Review 51–78, and J Griffiths, “The Regulation of Euthanasia and Related Medical
Procedures that Shorten Life in the Netherlands” (1994) 1 Medical Law International 137–58, for a
full account.
18
For further detail see, H Nys, “Physician Involvement in a Patient’s Death: A Continental
European Perspective”, (1999) 7 Medical Law Review 208–246.
19
The Rights of the Terminally Ill Act 1996.
20
The operation of this legislation is discussed in detail in ch. 2.
21
The Death with Dignity Act 1994.
22
Washington v. Glucksberg S Ct 2258 (1997).
23
Vacco v. Quill 117 S Ct 2293 (1997).
24
See for example, Matter of Conroy, 98 NJ 321, 355, 486 A. 2d 1209, 1226 (1985) which held
that, “when feeding tube is removed, death results . . . from [the patient’s] underlying medical con-
dition”, Cruzan v. Director, Mo. Dept. of Health, 497 US 261 (1990) at 278–80, Airedale NHS Trust
v. Bland [1993] 2 WLR 316 at 368, People v. Kevorkian, 447 (1997) US LEXIS 4038 *3.
However, where death results from the administration of drugs, death is caused
by the medication. Therefore the Equal Protection Clause was not violated by
upholding this distinction because everyone is allowed to refuse treatment while
nobody was at that time permitted to assist suicide, hence New York’s prohibi-
tion of assisted suicide was not found to be unconstitutional.
In England the common law of homicide is central to the proscription of
euthanasia. If the dying process is hastened by one person to limit the suffering
of another the criminal law makes no concession for benevolent motives or the
wishes of the alleged victim; it steadfastly refuses to “leave the issue in the hands
of doctors; it treats euthanasia as murder.”25 John Keown describes the notion
that any life may be worthless enough to be discontinued as “alien” to the
English criminal law since the principle of the sanctity of human life means that,
“because all lives are intrinsically valuable, it is always wrong intentionally to
kill an innocent human being”.26 Others have expressed concerns about the
potential impact of any relaxation of the prohibition of euthanasia, in all its
guises, on the doctor/patient relationship. Capron articulates the point very
forcefully, stating:
“I never want to have to wonder whether the physician coming into my hospital room
is wearing the white coat . . . of the healer . . . or the black hood of the executioner”.27
He raises the spectre of doctors practising euthanasia for their own motives,
rather than at the voluntary request of their patients.
Despite the obvious validity of such widely held concerns, the words of one
woman dying of a brain tumour epitomise the close association between volun-
tary euthanasia and dignified death in the minds of many when she said:
“If I had my way I could say good-bye . . . I could choose my time and be calm and col-
lected about it. I have had a good life and I would dearly like a good death . . . my last
wish is to die with dignity”.28
In this context voluntary euthanasia offers the opportunity to select the time and
manner of one’s dying in order to secure a peaceful death, unencumbered by
intrusive medical technology. A death such as this, where the person concerned
is able to maintain control and exert a similar influence over dying as has been
experienced throughout her lifetime, is perceived as inherently dignified. Dignity
here represents the capacity to exercise choice and have those choices respected.
Thus if clinicians and carers acceded to requests for voluntary euthanasia they
would not do so with malicious intent. They would do so through a compas-
sionate desire to give effect to the autonomous wishes of patients seeking death
25
G Williams, Textbook of Criminal Law 2nd edn. (London, Stevens, 1983) at 580.
26
J Keown, “Courting Euthanasia? Tony Bland and the Law Lords” (1993) 9(3) Ethics and
Medicine 15.
27
A M Capron, “Legal and Ethical Problems in Decisions for Death” (1986) 14 Law Medicine &
Health Care 141.
28
C Taylor-Watson in Margarette Driscoll “After a Good Life, Why can’t we Choose a Good
Death?” The Sunday Times, 15 January 1995.
with dignity. And, because the fundamental ethical and humanitarian questions
raised by voluntary euthanasia are perhaps too complex to facilitate resolution
through the criminal justice system, it may be inappropriate to police euthanasia
with the blunt instrument of the criminal law of homicide which emphasises
sanction, prevention and retribution. A determination of how euthanasia and the
law of homicide interact and how they relate to the concept of human dignity is
therefore central to this analysis. Before this can be achieved however, it is first
necessary to define when life ends and death begins medically, legally and philo-
sophically, since these definitions are central to our social, moral and legal
understanding of euthanasia and any criminal culpability that attaches to it.
DEAD OR ALIVE ?
There was a time when it was obvious to even the casual observer that a person
had died. There would be no respiration or pulse and the body would cease to
function finally and irrevocably. This is no longer the case. Even lay people now
have the knowledge and ability to resuscitate a person who has suffered a heart
attack or respiratory failure and effectively bring them back from the dead.
Medical professionals, aided by technology, have the expertise to revive a per-
son who in earlier times would have been considered dead, and to keep a body
alive even after the brain has died. As a result, questions of exactly when life
ends and how death is defined have been clinically and legally perplexing.
Indeed some commentators have regarded the definitions of death available to
them as highly ambiguous, such that:
“at whatever level we choose to call death, it is an arbitrary decision. Death of the
heart? The hair still grows. Death of the brain? The heart may still beat”.29
This being the case, exactly when is somebody medically and legally dead?
Determining the answers to this question with certainty depends upon an
understanding of what categorises the distinction between life and death.
Currently accepted definitions of life and death are informed by religious,30
philosophical, cultural and legal perceptions, and are historically specific, hav-
ing evolved alongside the development of medical science. Modern medicine
relies extensively on technology to mechanically support life while diagnostic
and therapeutic procedures are undertaken and in some situations diagnosing
death has itself become an equally complex process. For example, when a per-
son is warm to touch and rosy to the eye but breathing with the aid of a machine,
how can we tell if she is alive or dead?
29
H Beecher, “The New Definition of Death, Some Opposing Viewpoints” (1971) 5 International
Journal of Clinical Pharmacology 120–1.
30
Of particular interest here are differing religious explanations of the relationship between
body and soul. For example in the Buddhist faith it is accepted that the soul only leaves the body
three days after physical death has occurred.
Dead or Alive? 17
Medically Dead
When the first heart transplant surgery was performed in South Africa in 1967
this question took on a new significance. To transplant a heart successfully the
operation must be performed before the organ stops functioning in order to
ensure that it is not damaged. But if death is defined in terms of continuing res-
piration and circulation, the removal of the heart would apparently cause death
and could be regarded as murder. If patients are to be offered the benefits of now
commonplace techniques such as artificial ventilation and organ transplanta-
tion without clinicians being exposed to legal sanction, an accurate and readily
understandable definition of death is clearly essential. Similarly, the assessment
of potential criminal culpability for euthanasia and assisted death depends upon
cognisance of exactly when and how a person has died.
Death does not occur in an instant but is the result of the culmination of the
processes of dying. After the cardio-vascular and the respiratory systems have
ceased to function, the death of the body tissues at cellular level is a gradual and
variable process. Some tissues and organs continue to live even after others have
died, a phenomenon that was clearly described more than twenty years ago in a
report by the Conference of the Medical Royal Colleges, with the words:
“death is not an event: it is a process, the various organs and systems supporting the
continuation of life failing and eventually ceasing altogether to function, successively
and at different times”.31
However, although most body tissues have the capacity to withstand a degree
of oxygen starvation and to repair themselves once their oxygen supply is
restored all tissues die if they are permanently deprived of oxygen. This,
together with the progressive nature of dying, necessitates the identification of
those organs which are most vital to the maintenance of life and whose failure
effectively defines death.
The cells of the brain and spinal cord are unique in that they do not possess
the capacity to regenerate; once brain damage has occurred it is irreversible. But
some areas of the brain, most notably the brain stem, are less susceptible to oxy-
gen deficiency than others and can endure longer periods of hypoxia before per-
manent damage occurs. All the autonomic functions of the body, including
respiration, are controlled by the brain stem so if it is damaged breathing will
stop. The cessation of spontaneous respiration due to circulatory arrest or
“intercranial catastrophe” caused by disease or trauma,32 will ultimately result
in death, although it may be many minutes before cardiac failure finally
occurs.33 At this point modern medical technology can interrupt the natural
31
Editorial, “Diagnosis of Death” (1979) 1 British Medical Journal 332.
32
C Pallis “Return to Elsinore” (1990) 16 Journal Medical Ethics 10.
33
For an interesting discussion of conceptual issues concerned with defining death see
E T Bartlett, “Differences Between Death and Dying” (1995) 21 Journal of Medical Ethics 270–276.
processes and the patient may be resuscitated and placed on a mechanical respir-
ator. Breathing and circulation will then continue even though the brain stem
has ceased to function. Nevertheless a person whose brain stem has been dam-
aged in this way can never regain the ability to function independently.
In the light of the impact of medical advances and authoritative academic and
medical comment from around the world,34 the Report of the Medical Royal
Colleges considered how death should be defined in 1976 and recommended
that “permanent functional death of the brain constitutes brain death”.35 The
following recommendations for the diagnosis of brain stem death were also con-
tained in the 1976 Report:
—the patient should exhibit fixed and dilated pupils (the eyes move with the
head and there is no “dolls eye” response),
—there should be no response to touching the eye with a wisp of cotton wool or
similar material,
—there should be no eye movement in response to cold water being passed into
the ear,
—there should be no gag reflex,
—there should be no response to pain,
—there should be no respiratory response, i.e. the patient will fail to breath
spontaneously when the respirator is withdrawn.
This definition of death was affirmed by the Conference of the Medical Royal
Colleges in 1979 with the statement that brain death could be diagnosed when
brain “functions” had, “permanently and irreversibly ceased”.36 The tests out-
lined above are designed to determine that brain functions cannot be restored.
The use of the word “functions” was carefully chosen to eliminate the possibil-
ity of failure to diagnose death in circumstances where continuing metabolic or
electrical activity in isolated areas of the brain is demonstrable. Such activity
does occasionally occur but if the criteria and tests used to diagnose brain stem
death have been satisfied it has no bearing on the patient’s prospects of recov-
ery. The medical definition of death is now associated with this kind of irreme-
diable damage to the brain and patients who have sustained such trauma have
been variously described as “brain dead” or “brain stem dead”. The body
remains artificially alive but the brain has died.
Adopting this definition of death has had wide-reaching implications for the
law, as well as for the practice of medicine. Once it is recognised that a patient’s
body can be artificially maintained, beyond the point where brain death is estab-
lished but that somatic death has not yet occurred, then it must be accepted that
a doctor’s role is no longer one of merely treating disease and saving life. Indeed
the role of the doctor has inevitably been broadened to include the ability to,
34
Perhaps most influential was the Report of the Harvard Brain Death Committee, Journal of
the American Medical Association, August 1968.
35
“Diagnosis of Death” (1976) 2 British Medical Journal 1187.
36
“Diagnosis of Death” (1979) 1 British Medical Journal 332 at para 7.
Dead or Alive? 19
“take decisions which may affect the span of human life”.37 Defining death as
occurring when the brain ceases to retain the capacity to maintain the bodily
functions can also sit uneasily with everyday understandings of life and death.
Intuitively a dead person is thought of as inanimate, cold and pale, but the
appearance of a person who is “brain dead” and connected to a life support sys-
tem contradicts this image. While respiration and circulation continue the body
appears to be alive, even if the stimulus is inorganic, and this can create false
impressions. Those who care for patients maintained in this way habitually
refer to them as if they remain alive as do visiting relatives and friends.38 It is
alien to human understanding to relate to a warm “breathing” body as if it were
dead; to do so seems disrespectful and destructive of human dignity.
Conversely, some commentators argue that to remain alive but devoid of the
ability to function as an independent human being, for example when a diagno-
sis of permanent vegetative state (PVS) has been made, is an undignified state
which ought to be defined as death. A correct diagnosis of PVS or long term coma
means that the ability to function as a social human being will never be regained.
Spontaneous respiration and circulation can continue but the capacity for cogni-
tive awareness or interaction with the world is permanently absent. Cognitive
function is what gives value to human life and when it is permanently lost the
unique reasoning character of the human personality disappears with it.
Theories of mind/body dualism where the body and the mind are regarded as dis-
tinct, help to inform the supposition that a human being amounts to more than
just a functioning, breathing body. Here the physical presence of the flesh, bones
and organs of the body constitutes the tangible person, but it is the mind that
“differentiates a man from other less interesting objects in the world—plants,
rocks, and masses of gas, for example”.39 The mind is also regarded as the ulti-
mate repository of the individual human personality so that, “cerebral function
is manifested in consciousness, awareness, memory, anticipation, recognition
and emotions [and] there is no human life in the absence of these”.40 Therefore,
if “the personal, identifiable life of an individual human can be equated to the liv-
ing function of that part of the brain called the cerebrum”41 the individual must
be considered dead once cognitive or cerebral function has ceased.
A definition of death that centres on the distinctiveness of the entity which is
the human being, and provides that once that distinctiveness is lost that person
is dead, means that death may be diagnosed when “the medical tests have in fact
determined that there is no potential for spontaneous cerebral brain function,
even if spontaneous respiration continues”.42 But the implications of adopting
37 H Beynon, “Doctors as Murderers” [1982] Crim LR 17.
38 Several examples of this phenomenon are offered by Peter Singer in Rethinking Life and Death
(Oxford, Oxford University Press, 1995) at 32.
39 K Campbell, Body and Mind 2nd edn. (Indiana, Notre Dame Press, 1984) at 2.
40 S D Olinger, “Medical Death” (1975) 27 Baylor Law Review 22.
41 Ibid.
42 E W Keyserlingk, “Sanctity of Life or Quality of Life” (1979) Law Reform Commission of
Canada, Protection of Life Series Study Paper, 62.

these notions about what constitutes death extend beyond the realms of the
practical and obvious to the philosophical and religious. Janet Daley eloquently
explains the problem:
“to move from the religious idea that what sanctifies human beings is the possession
of an immortal soul, to the rationalist one that the only thing that is sacred—the only
thing that gives us a right to live—is a fully functioning mind, is a moral shift of con-
siderable significance”.43
That moral shift is one that the medical profession appears not to have
embraced, since “doctors invariably regard such [PVS] patients as alive”44 and
cognitive death remains peripheral to established medical criteria for defining
death and is consequently not definitive. Yet, as will be discussed more fully in
chapter two, the treatment of patients in a persistent vegetative state who have
suffered cognitive death can be problematic. Frequently the relatives do not
wish their loved one to be maintained in such a condition indefinitely, and the
demands on scarce medical resources dictate that there is reluctance to persist
with costly but futile treatment. The courts have been required to decide
whether or not a person must be maintained or may lawfully be allowed to die,
and the significance of brain stem death and cognitive death has been assessed
in order to establish a legal definition of death.45
Legally Alive
There is no statutory definition of death in the United Kingdom, although the

merits and demerits of introducing such a definition have been widely dis-
cussed.46 By comparison, in America death has been defined by statute for many
years with an early example, Kansas Statutes 1971 including the rather ambigu-
ous statement that:
“A person will be considered medically and legally dead if, in the opinion of a physician,
based on ordinary standards of medical practice, there is the absence of spontaneous
brain function”.
The situations where a clear legal definition of death can be a significant advant-
age are many and diverse. It may be necessary to determine exactly when a per-
son died in order to establish who will benefit from the deceased’s estate, or to
43
J Daley, “Where’s Mercy in Such Killings?” Daily Telegraph 16 April 1996.
44 P D G Skegg, Law, Ethics and Medicine (Oxford, Clarendon, 1984) at 215, parenthesis added.
45 Cases include Re Quinlan, 70 NJ 10 353A 2d 647 (1976), Cruzan v. Dept. of Health of
Missouri, 110 S Ct 2841 (1990), Airedale NHS Trust v. Bland, [1993] 1 All ER 821, and Re A [1992]
3 Med LR 303.
46 Examples of the arguments for and against implementing a statutory definition are included
in, I Kennedy, “Alive or Dead” (1969) 22 Current Legal Problems 102, P D G Skegg, “The Case for
a Statutory Definition of Death”, (1976) Journal of Medical Ethics 190, and the report of the
Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person, Cmnd. 7844
(London, HMSO, 1980) at para 37.
Dead or Alive? 21
allocate criminal responsibility for causing the death, or to absolve professional

carers of responsibility by negating any possible duty of care. Each of these
situations has featured in cases that have sought to clarify the issue of when a
person is legally dead.
Smith v. Smith47 was an early American case which sought a legal definition
of death. Mr and Mrs Smith had died following a road accident. Mr Smith was
declared to be dead on arrival at hospital but Mrs Smith was unconscious and
remained so until certified dead seventeen days later. The Smiths had no chil-
dren and each had made a will to the effect that their property should pass to the
other in the event of death. At issue was who should inherit the Smith’s estate?
If Mrs Smith had not died in the accident then Mr Smith’s property would pass
to her and thence to her beneficiaries on her death. But, under the established
law, if they had died simultaneously in the accident then the joint estate would
pass to Mr Smith’s family.
Reflecting a traditional approach to the issue, the Court held that while a per-
son continued to breathe, even if aided by a machine, he or she remained legally
alive. However, as medical technology advanced this approach became increas-
ingly problematic, as is demonstrated by the British case R v. Potter.48
Here the “victim” was admitted to hospital with severe head injuries follow-
ing a fight with the defendant in the case. Fourteen hours later he stopped
breathing and was placed on a respirator. After twenty-four hours a kidney was
removed for transplantation and subsequently the respirator was switched off.
He then failed to breath spontaneously and was declared dead. The traditional
definition of death dictates that the victim/patient remained alive while respira-
tion and circulation continued, even if this was artificially maintained.
Therefore the kidney had been removed while he was still alive, without con-
sent, and for no purpose which was beneficial to him, thus the surgeons had
committed a battery. Furthermore, the defendant then argued that the actions
of the doctor had broken the chain of causation between the assault, for which
he was responsible, and the death of the victim. The court appears to have
agreed because the assailant was convicted only of common assault.
The medical definition of death was already clearly in need of refinement
when the advent of two important criminal appeal cases made it imperative that
the law keep pace with medical developments.49 In R v. Steel the victim was a
young woman, Carol Wilkinson, who left her job in a bakery at about 9 a.m. on
10 October 1977 to walk home. At some time between 9 o’clock and 9.30 a.m.
she was attacked, stripped of her clothing and beaten about the head with a fifty
pound stone that was later found nearby. She was discovered in a field next
to the road soon after and taken to hospital where she was found to have
47
(1958) 317, SW 2d, 275 Supreme Court of Arkansas.
48
The Times 26 July 1963, discussed in D W Myers, The Human Body and the Law 2nd edn.
(Edinburgh, Edinburgh University Press, 1990) at 190, and I Kennedy, A Grubb, Medical Law: Text
with Materials 2nd edn. (London, Butterworths, 1994) at 1389.
49
R v. Malcherek and Steel [1981] 2 All ER 422.
suffered multiple skull fractures and concomitant brain damage. Ms Wilkinson

was connected to a ventilator but this was disconnected two days later when no
electrical brain activity could be detected. The post-mortem examination sug-
gested that decomposition of the brain had already begun. The question was,
when did she die?
The same question arose in R v. Malcherek, which involved a violent marital
dispute between Malcherek and his wife Christina, culminating in her receiving
nine stab wounds. One wound penetrated her abdomen necessitating surgery to
remove a section of intestine but Mrs Malcherek was initially expected to make
a full recovery. Unfortunately she later collapsed and was transferred to another
hospital for more specialised treatment. She deteriorated further and was
thought to have suffered a massive pulmonary embolism, a recognised complic-
ation of major abdominal surgery. Resuscitation and surgery were performed.
A large blood clot was removed from her heart which then resumed normal
functioning. But, because there had been no circulation for approximately thirty
minutes, anoxic brain damage was anticipated. Mrs Malcherek was placed on a
ventilator and an electro-encephalogram was performed to determine the level
of brain function. The prognosis was poor. She did breathe spontaneously for a
while until a further deterioration occurred, which was attributed to a blood
clot in the brain. Tests were carried out to confirm that there was irreparable
damage to the brain. Consultations then took place with the relatives before the
life support system was switched off and she died.
At the trials of both Malcherek and Steel, the juries were advised to consider
only the established facts and the intentions of the defendants. Both defendants
were convicted but appealed, arguing that the juries should have been invited to
consider the issue of causation. They suggested that death had actually been
caused by the doctors switching off the machines and not by the actions of the
defendants; a view which was consistent with traditional definitions of death.
It was held on appeal that in each case, the medical treatment had been com-
petent and adequate. The wounds inflicted on the victims remained “a continu-
ing and indeed substantial cause of death” such that the defendants must be
convicted. Lord Lane said:
“Where the medical practitioner using generally acceptable methods, came to the con-
clusion that the patient was, for all practical purposes dead and that such vital func-
tions as remained were being maintained solely by mechanical means and accordingly
discontinued treatment, that did not break the chain of causation between the initial
injury and death”.50
The judgment recognised that the action of the doctors was not responsible
for the death of the patients and that there could be multiple causes, but it did
not explicitly define what constitutes death. Subsequent cases similarly failed
to adequately address the issue, despite having the opportunity and the need so
50
R v. Malcherek and Steel [1981] 2 All ER at 430 per Lord Lane.
Dead or Alive? 23
to do. Amongst these was the case of Mail Newspapers PLC v. Express
Newspapers PLC,51 concerning who owned the copyright to photographs taken
at Mr and Mrs Bell’s wedding and published in seven daily newspapers.
Mrs Bell had suffered a brain haemorrhage when she was twenty-four weeks
pregnant. She was thought to be clinically dead but was maintained on a life
support system in the hope that her baby could be born alive, hence the media
interest. Here it would clearly have been appropriate and beneficial for the court
to articulate a legal definition of death but none was forthcoming.
The legal ownership of the copyright to the photographs was in doubt because,
although Mrs Bell had commissioned them she had acted in consultation with her
future husband and it was he that had ultimately paid for them. Mr Bell had
signed an agreement with Mail Newspapers PLC, giving them sole rights to future
publication but it was questionable whether he had the authority so to do. The
court found that the copyright was jointly owned by the couple and that neither
co-owner was entitled to grant an exclusive license. According to Millet J there
was therefore, “at the very least a serious question to be tried whether Mrs Bell is
alive or dead”52 because only in the event of Mrs Bell’s death would Mr Bell be
empowered to grant the sole rights to Mail Newspapers PLC. Despite the fact that
Mrs Bell’s status as dead or alive was recognised as “a serious question” the court
avoided the opportunity to define death on this occasion, being content instead to
decide the case on the basis of the probability that she was dead.
“The overwhelming probability must be that, if Mrs Bell is not already dead, she will
incontrovertibly be dead immediately or very shortly after the birth of the baby, when
it is virtually certain that the life support system, having fulfilled its purpose, will be
switched off, so that at that time, if not before, the overwhelming likelihood is that the
sole title to the copyright will have vested in Mr Bell”.53
It is perhaps understandable that a Court convened to hear a case concerning

intellectual property rights would be reluctant to propose a legal definition of
death. It was then to be another five years before the position was accorded fur-
ther clarification by Johnson J in Re A (A Minor).54
Child A was admitted to hospital via the accident and emergency department
following an injury suffered at home. No heart beat could be detected and ini-
tial attempts at resuscitation proved unsuccessful until eventually cardiac func-
tion was restored. The next day he was transferred to another hospital for
assessment and intensive therapy, but still no signs of recovery could be induced.
The consultant overseeing A’s treatment carried out tests to determine whether
the child was in fact, brain stem dead, according to the criteria outlined by
the Medical Royal Colleges.55 When the tests confirmed that he was indeed
51 [1987] FSR 90.
52 Ibid at 94.
53 [1987] FSR 90 at 95.
54 [1992] 3 Med L R 303.
55 “The Diagnosis of Brain Death” (1976) 2 British Medical Journal 1187, and “Diagnosis of
Death” (1979) 1 British Medical Journal 332.

clinically dead they were repeated by a second consultant, a paediatric neurolo-

gist, who reached the same conclusion. It was then proposed that Child A be dis-
connected from the ventilator.
Child A and his siblings were the subject of an emergency protection order
under the Children Act 1989. This order decreed that parental responsibility for
the children was conferred upon the local authority under section 44(4)(c), but
that this was imposed without absolving the parental responsibility of the par-
ents.56 The parents were hostile to the clinicians and their findings because sus-
picions had been raised that the child had sustained non-accidental injuries.
They refused to give permission for the life support to be withdrawn. Therefore
the local authority sought a precise declaration as to the child’s status and the
legal position should artificial life support be withdrawn. After hearing the evi-
dence Johnson J. declared:
“A is now dead for all legal, as well as medical, purposes, and . . . [I] make a declara-
tion that should the consultant, or other consultants . . . consider it appropriate to dis-
connect A from the ventilator, in so doing they would not be acting contrary to the law
. . . I hold too that it would be wholly contrary to the interests of that child, as they
may now be, for his body to be subjected to what would seem to me to be the continu-
ing indignity to which it is subject”.57
This statement effectively incorporates the definition of death adopted by the
medical professions in 1976 into the common law by accepting that the legal and
medical definitions of death are the same. Brain stem death can now be regarded
as definitive of death both medically and legally, provided that the procedures
and recommendations of the Report of the Royal Colleges have been strictly
adhered to and the brain stem has totally and irreversibly ceased to function.
But it is clear that brain stem death is not universally accepted as the most
appropriate method for assessing life’s end. Some of the philosophical concerns
about distinguishing brain death and cognitive death already discussed were
emphasised in the highly publicised case of Airedale NHS Trust v. Bland.58
Anthony Bland had been in a PVS for four years when his family and doctors
applied to the Court for a declaration that to withdraw nutrition and hydration
would be lawful. Advocates of the theory that individuals who have permanently
lost cognitive function should be regarded as dead would argue that Anthony
Bland had been dead since the accident that resulted in his irreversible coma.
Those caring for him regarded him as alive but accepted that there was no prospect
of recovery and that treatment withdrawal would lead to his death. In view of
these tensions the Law Lords carefully considered the issue of when death occurs.
“as a result of developments in modern medical technology, doctors no longer associ-
ate death exclusively with breathing and heartbeat, and it has come to be accepted that
death occurs when the brain, and in particular the brain stem, has been destroyed”.59
56 s.2(b) Children Act 1989.
57 [1992] 3 Med LR 303, at 305.
58 [1993] 1 All ER 821, [1993] 2 WLR 316.
59 Ibid per Lord Goff at 366.
The Law Lords concluded that:

“in law, Anthony is still alive. It is true that his condition is such that it can be
described as a living death; but he is nevertheless still alive . . . The evidence is that
Anthony’s brain stem is still alive and functioning and it follows that, in the present
state of medical science, he is still alive and should be so regarded as a matter of
law”.60
Cognitive death is not therefore a state presently recognised as death by medi-

cine or the law. Were it to be so it would raise serious problems concerning the
cause of death in trauma victims and the victims of crime, as well as for the care
of brain damaged infants and adults. These issues will be discussed in greater
detail in chapter two.
EUTHANASIA AS HOMICIDE
These medical and legal definitions of death have been outlined in order to facil-
itate this discussion of the ethical and legal implications of euthanasia and
assisted death. It is also necessary to consider the relationship between euthana-
sia and homicide which dictates criminal culpability where euthanasia and
assisted death are at issue. Homicide includes murder and manslaughter61 both
of which are common law offences, without statutory definition. Murder is clas-
sically defined as, “when a man of sound memory, and the age of discretion
unlawfully killeth within the country of the realm any reasonable creature . . .
under the Kings peace, with malice aforethought”.62 Modern language therefore
describes murder as the intentional, unlawful killing of one human being by
another and it is clear that euthanasia will tend to fall within this definition.
Yet the criminalisation of voluntary euthanasia is increasingly at odds with
our libertarian society’s definition of morally wrong behaviour and conduct
which is harmful to others. Harm itself is a concept susceptible to a variety of
moral interpretations and Ashworth correctly states that, “one cannot proceed
far without adopting a definition of harm”.63 John Stuart Mill’s liberal philoso-
phy declares that individual autonomy should be respected and that the state
should criminalise only conduct which is harmful to others.64 Voluntary
euthanasia falls outside the scope of criminal behaviour in this model since the
harm is not inflicted on others and is performed at the volition of the “victim”.
Against this, Feinberg has argued that the criminal law should be invoked
to prevent or reduce any conduct that may prove harmful to others,65 of which
60
[1993] 2 WLR 316, per Lord Goff at 368.
61
Infanticide is also defined as homicide but, under the Infanticide Act 1938, it applies only where
a woman causes the death of her own child before that child reaches the age of twelve months.
62
Coke, 3 Inst 47.
63
A Ashworth, Principles of Criminal Law 2nd edn. (Oxford, Clarendon Press, 1995) at 30.
64
J S Mill, On Liberty (London, Parker, 1859).
65
J Feinberg, Harm to Others (Oxford, Oxford University Press, 1984), J Feinberg, Harmless
Wrongdoing (Oxford, Oxford University Press, 1988).
voluntary euthanasia is clearly an example. Voluntary euthanasia therefore

remains contrary to the criminal law but does not, in practice, sit easily with the
principles that underpin it. The following cases demonstrate that as a conse-
quence, people (doctors, patients and carers) who confront a choice between
protracted, undignified, suffering, and quick release, are not well served by a
criminal justice system which rests upon such uncertainty and inconsistency. As
a result of criminalisation dignity in dying may be achieved at the expense of the
dignity of a caring medical practitioner, family member or compassionate
friend.
In 1957 Dr John Bodkin Adams was tried for the murder of an eighty-four
year old woman in his care, who had named him as a beneficiary in her will.66
The patient was terminally ill and succumbed following the administration of
large doses of narcotics prescribed by Dr Adams. Other, similar cases were also
suspected in his practice. Devlin J advised the jury that, regardless of the health
of the victim and the motive of the accused, the law would treat as murder any
action which intended to kill and did in fact kill. Despite this he also ruled that,
“If the first purpose of medicine, the restoration of health, can no longer be achieved
there is still much for a doctor to do, and he is entitled to do all that is proper and nec-
essary to relieve pain and suffering, even if the measures he takes may incidentally
shorten human life”.67
After a seventeen day trial the jury declined to convict. They deliberated for only
forty-five minutes before finding Dr Adams not guilty.
Acquittal was also the outcome of the trial of Dr Leonard Arthur, a paedia-
trician who was charged with the murder of a neonate with Down’s
Syndrome.68 The child had been rejected by his parents who instructed Dr
Arthur that they did not wish the baby to survive. Subsequently a note was
entered in the medical records that the baby should receive “nursing care only”.
The infant was not fed but received strong pain killing drugs, allegedly to ease
his distress. He died three days later. The doctor argued that the child died of
natural causes due to Down’s Syndrome, and when evidence was revealed that
other significant congenital abnormalities were also present, the charge was
reduced to attempted murder. Despite being advised that doctors, like everyone
else, must practise within the law, and that benevolent motives are irrelevant in
determining intention, the jury failed to convict Dr Arthur.
The pattern was repeated in the trial of Dr Carr who was charged with
attempted murder when his patient died after he injected him with a huge dose
of phenobarbitone (a barbiturate).69 Compelling evidence was presented that the
66
H Palmer, “Dr Adams on Trial for Murder”, R v. Adams [1957] Crim LR 365.
67
Ibid, at 375.
68
R v. Arthur, The Times, 6 November 1981, 1, and (1993) 12 BMLR 1. This case remained offi-
cially unreported for many years but many accounts are available, see for example, Poole, “Arthur’s
Case: A Comment” [1986] Crim LR. 383.
69
R v. Carr, The Sunday Times, 30 November 1986, 1.
patient had been suffering terribly with inoperable lung cancer and had repeat-
edly requested that his inevitable death be hastened. Dr Carr was acquitted.
A different outcome occurred in R v. Cox.70 Here the clinician carried out the
wishes of his distressed and dying patient and deliberately injected her with
strong potassium chloride, a drug which causes death but had no therapeutic
value. She died soon afterwards and Dr Cox was charged with attempted mur-
der. The jury was given no choice but to convict in this instance since the death
had resulted from deliberate unlawful killing and was therefore categorised as
homicide in spite of the apparently benevolent motive. There was no legal
alternative to finding Dr Cox guilty as charged, even though the patient’s fam-
ily considered that he had enabled their elderly relative to secure a merciful
release from the terrible pain and distress she was enduring so that she could die
with dignity. That, and subsequent cases71 generated considerable public debate
and concern for the doctor, the patient, her family and others who may find
themselves in a similar situation.
These cases stand as authority for the basic premise that deliberately to take
the life of another is a crime. They are also testimony to the hesitance of juries
to disregard the compelling motives of the individuals concerned, unless the
evidence is incontrovertible. Against this background, Airedale NHS Trust v.
Bland,72 was presented to the courts to obtain a declaration that withdrawal of
“treatment”73 leading to death was lawful, so that the medical attendants could
avoid criminal prosecution. Those caring for Anthony Bland faced an ethical
dilemma if they continued to treat him and a legal one if they did not. His condi-
tion offered no prospect of recovery or improvement, so to maintain a regime of
burdensome and invasive treatment was medically futile. Yet to discontinue
treatment would cause his death and give rise to criminal culpability.
Withholding nutrition and hydration from Tony Bland would inevitably result
in his death; this was clearly understood, even desired, by those responsible for
his care, and would therefore signal the imposition of murder charges.
Similar issues were graphically depicted by the harrowing experiences of
Thomas Creedon and his family.74 This child was born so severely brain dam-
aged that he could never interact with the world around him or those in it. He
could only sustain nourishment through intrusive tube feeding and was often
inconsolable. The paediatrician responsible for Thomas’s initial care dismissed
his parents’ pleas for their son’s life to be brought to a peaceful and dignified
conclusion, arguing that to do so would contravene the criminal law. Feeding,
70
R v. Cox (1992) 12 BMLR 38.
71
Most notably amongst these is the case brought by Annie Lindsell, who sought a right to die
with dignity in 1997, and the later criminal case brought against Dr David Moore, who was acquit-
ted of murder in 1999.
72
[1993] 1 All ER 821.
73
The emphasis on “treatment” is intended to demonstrate the unease with which many com-
mentators have approached the fact that the provision of nutrition and hydration was described as
such.
74
K Toolis, “A Death for Thomas”, The Guardian Weekend, 3 February 1996, 18–23.
he stated, was a basic right and he had a duty to provide it. Perhaps fortunately
for all the Creedons, Thomas died before it became necessary to determine
through the courts whether allowing Thomas to die, at his parents’ request,
would constitute homicide.
The issues raised by these cases characterise the medico-legal dilemma gener-
ated by voluntary euthanasia. Good medical practice requires that patients do
not experience unnecessary and unwelcome suffering but the criminal law is
inconsistent in its response to practitioners who take life-limiting decisions.
Clinicians like Nigel Cox, who openly end their patients’ lives out of compas-
sion, are sanctioned,75 while euthanasia through the subterfuge of selective non-
treatment,76 and double effect, where beneficial medication is given in the
certain knowledge that death will occur as a side effect,77 has been permitted.78
Some authors have suggested that if Dr Cox had used pain relieving medication,
instead of strong potassium chloride, he would have been shielded from convic-
tion by the doctrine of double effect.79 Such an approach would have placed
Cox’s conduct firmly within Devlin J.’s contention that, “the doctor is entitled
to relieve pain and suffering even if the measures he takes may incidentally
shorten life”,80 but would not have avoided the simple truth that it was his
intention to kill the patient, albeit for benevolent motives. Within the law as it
stands Dr Cox was criminally culpable because he had foresight of the conse-
quences of his actions,81 and those actions were a probable cause of the patient’s
death. The consent of the deceased and the approval of her relatives is irrelevant
in this context, providing no effective defence for the clinician.
The allocation of criminal responsibility in cases involving euthanasia and
assisted death are, as in all criminal cases, dependent upon determining the actus
reus and mens rea of the crime involved, namely homicide. The requisite mens rea
is apparent in Bland in that the purpose of withdrawing treatment is to bring about
death. The actus reus is less clear cut, depending on whether treatment withdrawal
is properly described as an act or an omission, whether the cessation of treatment
is a demonstrable cause of death and, if treatment withdrawal constitutes an omis-
sion, was there a duty of care? Ann Winterton’s Medical Treatment (Prevention of
Euthanasia) Bill, presented to the House of Commons in December 1999, had at
its core the intention to remove such distinctions. It aimed to prohibit the with-
drawal and withholding of medical treatment and sustenance from a patient where
the intention is to cause death. Its enactment would have effectively prevented
cases similar to Tony Bland’s achieving similar resolution.
75 R v. Cox (1992) 12 BMLR 38.

76 Airedale NHS Trust v. Bland [1993] 1 All ER 821, Frenchay NHS Trust v. S [1994] 2 All ER
403.
77 H Palmer, “Dr Adams on Trial for Murder”, R v. Adams [1957] Crim LR 365.
78 These issues will be discussed in detail in ch. 2.
79 C Wells, “Patients, Consent and Criminal Law” (1994) 1 Journal of Social Welfare and Family
Law 65, at 73.

80 H Palmer, “Dr Adams on Trial for Murder”, R v. Adams [1957] Crim LR 365.
81 R v. Moloney [1985] AC 905, R v. Nedrick [1986] 3 All ER 1.
Chapter two will analyse the legal and ethical issues raised by the withdrawal
of nutrition and hydration in detail alongside those related to other forms of
euthanasia such as assisted suicide, double effect and mercy killing. The fine dis-
tinctions between killing and caring will be examined by exposing the tensions
that are inevitably generated by end of life treatment decisions. Killing is a crime
and generally the criminal law distinguishes conduct which society considers
harmful as worthy of criminal sanction. Therefore in most instances of homi-
cide, death is the harm caused by the conduct of the accused who has killed the
victim. With euthanasia, it is the indignity of enduring the kind of living death,
associated with the protracted dying process associated with terminal disease,
or surviving in a persistent vegetative state, that can appear more harmful than
death itself. So ending the harm by bringing the life of the victim to a dignified
end can be considered caring. As a result great significance is attached to the per-
ceived need for dignity in dying by those who advocate euthanasia, but there are
fundamental questions which need to be addressed before a valid case can be
made for euthanasia as a mechanism for providing dignity in dying.
EUTHANASIA AS DEATH WITH DIGNITY
Human dignity is a descriptive and value-laden quality encompassing self-

determination and the ability to make autonomous choices, and implies a qual-
ity of life consistent with the ability to exercise self-determined choices. It is a
concept that is gaining currency with modern political philosophers. Ronald
Dworkin, for example, describes belief in individual human dignity as the most
important feature of Western political culture giving people the moral right “to
confront the most fundamental questions about the meaning and value of their
own lives”.82 People who examine the meaning and value of their lives in the
face of imminent death often express concerns that their dignity may be com-
promised if the dying process is prolonged and involves becoming incapacitated
and dependent. The ability to retain a similar level of control over dying as one
has exercised during life is widely regarded as a way of achieving death with dig-
nity. Madan argues that this is because:
“dignity does not come to the dying from immortality fantasies, or compensatory
ideas, such as reincarnation and paradise, nor does it come from empowerment
through modern medicine. It comes from the affirmation of values, not only up to the
boundaries of death . . . but in a manner that encompasses dying under living and does
not oppose the two in a stern dualistic logic”.83
In line with this view advocates of euthanasia as death with dignity believe that
respect for individual autonomy should allow patients the opportunity to
choose euthanasia as an alternative to becoming dependent upon medical carers
82
R Dworkin, Life’s Dominion (London, Harper-Collins, 1993) at 166.
83
T N Madan, “Dying with Dignity” (1992) 35 Social Science and Medicine 425–32.
and burdensome to family and society.84 Patient autonomy, self-determination

and control are given legal expression through the law of consent which theor-
etically offers every person the right to “determine what shall be done with his
own body”85 and ensures that anyone who imposes medical treatment, involv-
ing physical contact or harm upon another, in the absence of valid consent, will
be criminally culpable. Any patient with the mental capacity to give consent is
also entitled to withhold consent,86 “even if a refusal may risk personal injury to
his health or even lead to premature death”.87 Established exceptions to this
general rule allow for treatment to be administered in the absence of consent if
there is a duty to act,88 or necessity.89 And failure to obtain consent where these
exceptions are not present can amount to criminal assault and battery. The law
pertaining to consent and issues relating to it are therefore pivotal to an analysis
of euthanasia and death with dignity. Chapters three and four offer a detailed
analysis of these issues and demonstrate that in practice an individual’s right
autonomously to determine what is done with her body is often limited.
The law of consent gives individuals the ability to choose whether or not to
accept whatever treatment is offered; it does not confer any right to demand that
particular forms of treatment be provided, even in the quest for death with dig-
nity. Voluntary passive euthanasia, where death results from selective non-
treatment because consent is withheld, is therefore legally permissible while
active euthanasia is prohibited. In this way people with the capacity might be
able to orchestrate the timing of their own deaths, in an attempt to achieve dig-
nity in dying. However, many of those who may become the potential subjects
of concerns about euthanasia are lacking in the mental capacity to give or with-
hold consent to medical treatment. Their rights to have their wishes and inter-
ests respected through autonomy and advance decision-making, and those of
their carers and clinical decision-makers will also be considered.
At first glance living wills appear to provide an opportunity to take and main-
tain control of ones life throughout its entirety. They are frequently promoted as
a means of achieving dignity in dying because they provide a mechanism whereby
a person’s wishes can be recognised and acted upon even after the capacity to con-
sent is lost. Their usefulness to people who are no longer able to participate in
medical decision-making will be carefully assessed in chapter five’s assessment of
their relevance to euthanasia and death with dignity, but it seems likely that their
greatest significance may lie in their promise rather than in their practical effect.
84
M Kelner, I Bourgeault, “Patient Control Over Dying: Responses of Health Care
Professionals” (1993) 36 Social Science and Medicine 757–765, C Seale, J Addington-Hall,
“Euthanasia: Why People Want to Die Earlier” (1994) 39 Social Science and Medicine 647–54.
85 Schloendorf v. Society of New York Hospital (1914) 105 NE 92, 93, (NY) per Cardozo J.
86 Re C (Adult Refusal of Treatment) [1994] 1 All ER 819, [1994] 1 WLR 290.
87 Re T (An Adult) (Consent to Medical Treatment) [1992] 2 FLR 458, per Lord Donaldson MR
at 473C.
88 R v. Stone [1977] QB 354, R v. Wilkinson, The Times, 19 April 1978, 5, R v. Smith [1979] Crim
LR 251.
89
Murray v. McMurchy [1949] 2 DLR 442, Re F [1990] 2 AC 1.
In jurisdictions other than Britain people have brought cases based upon
claims of a constitutional right to die with dignity.90 These examples focus on
the right to selective non-treatment and assisted suicide as an alternative to a
perceived life of indignity. They do not adequately address the fundamental
question of whether this kind of death constitutes dignified dying. British law
does not explicitly recognise any right to die with dignity, although both
Airedale NHS Trust v. Bland91 and Frenchay NHS Trust v. S92, amongst others,
referred to the importance of dignity and the indignity of being maintained in
a living death. Non-treatment though could in some circumstances only
accomplish a death that has little to do with dignity. Death will result from slow
starvation, for those like Bland who have been diagnosed as PVS; untreated
infection, for handicapped infants like Thomas Creedon, or perhaps AIDS
sufferers; or suffocation due to the discontinuation of artificial respiration for
those inflicted with Guillain-Barre syndrome or similar pathology. In each case
the dying person can be supported by palliative therapy to lessen any suffering
associated with the dying process but few observers would describe such
deterioration and decline as dignified.
Moreover, in the broader context of active voluntary euthanasia, death may
be caused by drug overdose, asphyxiation, or lethal injection.93 Such conduct
promotes patient autonomy but may not be inherently dignified because the dig-
nity of others may be compromised. Over-emphasising individual autonomy
can cause other concepts of private and public good, which might permit greater
recognition of the potential effects on people other than the patient, to be over-
looked.94 In particular it is questionable whether the ability to choose and prac-
tise euthanasia can actually promote dignity in dying while it remains unlawful
and exposes practitioners to the prospect of criminal and professional sanction.
R v. Cox,95 where the doctor exercised absolute respect for his patient’s
autonomy by responding to her appeals that he curtail her suffering by killing
her, illustrates the dilemma. The patient allegedly achieved her dignified death
but the doctor who assisted her was subjected to the indignity of a criminal trial.
He was convicted of attempted murder and as a consequence faced a profes-
sional disciplinary hearing to assess his proficiency and moral integrity. Dr Cox
received a suspended jail sentence and a supervision order regarding his clinical
conduct. His dignity was jeopardised because he acceded to his patient’s request
for a dignified death.
90 Rodriguez v. A-G of British Columbia [1993] 3 WWR 553, B(Nancy) v. Hotel-Dieu de Quebec
(1992) 86 DLR (4th) 385, (Quebec Supreme Court), Cruzan v. Missouri Department of Health
110 S Ct 2841 (1990), and Re Quinlan (1976) NJ 355 A 2d 647.
91 [1993] 1 All ER 821.
92 Frenchay NHS Trust v. S [1994] 2 All ER 403.
93 It is interesting to note that in the context of execution, lethal injection is considered more
humane, and therefore perhaps more dignified, than hanging or gassing.

94 S Jinnet-Sack, “Autonomy in the Company of Others”, in A Grubb (ed.), Choices and
Decisions in Health Care (Chichester, Wiley, 1993) at 97.

95 R v. Cox (1992) 12 BMLR 38.
The methods adopted by other health care professionals, who have been
acknowledged as instrumental in the premature deaths of others, also demon-
strate that euthanasia does not necessarily impart dignity. For example the
Dutch doctor, Boudewijn Chabot, was subjected to the indignity of several
court and disciplinary procedures after he assisted in the suicide of a physically
healthy but depressed patient. Chabot was steadfast in his defence of his actions,
believing that his response had been humane, but the court refused to accept his
plea that he had acted out of the recognised defence of necessity. It is interesting
to ponder on the impact of the court cases and media attention on the dignity of
his patient’s family.
The practices of the American doctor Jack Kevorkian, alias “Dr Death”, also
suggest that enabling people to fulfil their desire for death with dignity may
simultaneously be destructive of the dignity of others. The former pathologist
used the media to promote the commercial use of his suicide machines to people
seeking assisted death. One highly publicised criminal case in Michigan
involved Janet Adkins, who was suffering from the initial stages of Alzheimer’s
disease and was anxious to avoid the debilitating progression of the condition.
She and her husband met and dined with the doctor and two days later she used
Kevorkian’s specially converted Volkswagen van to kill herself in a public park.
Mrs Adkin’s motivation may be wholly understandable as may the doctor’s
respect for her wish to escape the undignified death she anticipated, but “Dr
Death’s” methods do little to advance the cause of death with dignity. Of con-
cern here is whether respect for human dignity extends beyond the dignity of the
individual involved in a particular enterprise, namely suicide and assisted sui-
cide, to the wider community, in this instance other users of the public park. The
dignity of one may be achieved by compromising the dignity of others. Despite
this however, for years juries repeatedly declined to convict Dr Kevorkian of
homicide or assisting suicide.96 His techniques may have been undignified and
contrary to the letter of the criminal law but they satisfied the morality of a sig-
nificant proportion of American society.
Euthanasia can offer the opportunity to select the time and manner of one’s
dying in order to secure a peaceful death, unencumbered by intrusive medical
technology, and such a death is perceived by many as inherently dignified.
However it is important to identify the precise nature of dignity in this context.
Human dignity is a quality with different connotations for different people and
in the context of dying many consider it more dignified to take the opportunity
to experience every second that life has to offer. The complex arguments around
dignity and the way it relates to euthanasia will be expanded in chapter six which
will discuss the similarities and differences between perceptions of dignity in
dying in different cultures. It will also consider the alternative to euthanasia
96
Reporting from New York for the Daily Mail on “Dr Death’s” involvement in the death of
Briton Austin Barnstable in Michigan on 10 May 1996, 25, Tony Gallagher quotes Jack Kevorkian
as stating that this was “the 28th time he had assisted a suicide”; he was on bail following an earlier
case of assisted suicide on this occasion.
offered by the hospice movement which regards palliative medicine and good ter-
minal care to be a more dignified option than euthanasia.
Whether a perceived need for death with dignity can be met through euthana-
sia and whether this should be achieved by legal reform to give people the legal
right to opt for euthanasia and assisted death is the central theme of this work.
The conclusion will draw together the threads of the argument and review
the possibilities for legal reform which might provide individuals with the
opportunity to select euthanasia. It will also describe some of the uncertainties
that surround the outcome of the possible introduction of legislation permitting
euthanasia, particularly for people who may subsequently discover that
euthanasia has become a duty rather than a right.
2
Euthanasia and Clinically Assisted
Death: From Caring to Killing?1
INTRODUCTION
Questions about the relationship between killing and caring are inevitable in a
climate where popular perceptions of the infallibility of advanced medical
technology and its apparently relentless ability to prolong living and dying have
increased awareness of voluntary euthanasia and assisted death. Clinical situa-
tions that might permit patients or doctors to select a course of medical treat-
ment that has potentially life-limiting consequences, raise profound legal and
ethical concerns. As a result, doctors confronted by distressed patients or relat-
ives seeking interventions that may be construed as euthanasia can experience
the killing/caring dichotomy as a moral dilemma emanating from a tension
between their ethical duty to relieve suffering and the responsibilities imposed
upon them by the law.
In Britain, medical decision-making at the end of life has never been subject
to greater scrutiny than in the post-Harold Shipman era. The distinction
between caring and killing has become highly contentious. Greater public
awareness of patient’s rights has developed through the publicity surrounding a
number of high profile cases,2 and the passage through Parliament of The
Medical Treatment [Prevention of Euthanasia] Bill 1999. Current political ideo-
logy has promoted consumerism through The Patients Charter,3 accompanied
by an expansion of doctors’ public accountability. Together these have em-
phasised the practical role of individual patient autonomy in the provision of
health care, especially at the end of life. Yet the absolute endorsement of the
patient’s right to autonomy in the pursuit of choice may compromise the clini-
cian’s professional and ethical integrity if it results in euthanasia.
This chapter defines and describes medical environments presently associated
with end of life decisions, and the legal response to them. It examines the med-
ical circumstances in which clinically assisted death sometimes seems appropri-
ate to patients seeking death with dignity, and the methods by which that might
1
This chapter formed the basis of an article published under the title “Decisions and
Responsibilities at the End of Life: Euthanasia and Clinically Assisted Death” (1996) 2 Medical Law
International 229–245.
2
Examples include, R v. Cox (1992) 12 BMLR 38, and Airedale NHS Trust v. Bland [1993] 1 All
ER 821.
3
The Patients Charter (London, HMSO, 1991).
36 Euthanasia and Clinically Assisted Death
be achieved. The ability to exercise choice, patient autonomy, the practical

treatment options available, and the role of the criminal law inevitably provide
the axes around which this legal and ethical analysis will turn.
Respect for individual autonomy is central to modern medical practice, dic-
tating that all patients have the right to exercise self-determination in respect of
their medical care. The law of consent gives legal expression to individual
autonomy4 and permits a competent adult absolute sovereignty to give or with-
hold consent even if death will be the result.5 And regard for individual auto-
nomy and autonomously made decisions can endure even after a patient loses
the mental capacity to participate in medical decision-making.6 However, the
right to give or withhold consent, either contemporaneously or in advance, does
not extend to requesting that a physician assist a patient to die by performing an
act that is contrary to professional ethics or could lead to criminal prosecution.
Indeed, Kennedy and Grubb argue that a reasonable clinical judgement cannot
be overridden by the patient or the law7 and case law supports their view that
the principle of respect for patient autonomy does not entitle patients to demand
treatments regarded as not clinically indicated.8
There might however be circumstances where a doctor feels an ethical com-
pulsion to comply with such a request. Arguably Dr Nigel Cox felt such a
responsibility when he responded to the repeated pleas of his long-term patient
Lillian Boyes to be released from pain by hastening her death.9 Similarly with
the Dutch doctor Boudewijn Chabot who controversially assisted a physically
healthy but clinically depressed patient to commit suicide.10 The doctor’s legal
and ethical duty is always to provide treatment in the patient’s “best interests”,
but the patient’s understanding of “best interests” may be at odds with conven-
tional medical wisdom and the law,11 especially if the patient, or her relatives,
are convinced that only the immediate ending of suffering through death repres-
ents the best interests. A request for deliberate life shortening action or a refusal
to consent to treatment are the probable consequences, and here clinicians may
find themselves being pressed to take decisions that are contrary to their ethical
4
Numerous cases endorse this right, see for example, Schloendorf v. Society of New York
Hospital (1914) 105 NE 92, (NY), Sidaway v. Bethlem Royal Hospital Governors [1985] 1 All ER
643 at 666, Re T [1992] 4 All ER 649 at 652–3. A full discussion of consent in the context of end of
life decisions follows in ch. 3.
5
This right was reiterated in Airedale NHS Trust v. Bland [1993] 1 All ER 821 at 860 per Lord
Keith, and in Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290.
6
Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649, endorsed the patient’s right to refuse
medical treatment in advance of that treatment becoming necessary, and Re C (Adult: Refusal of
Treatment) [1994] 1 WLR 290, held that this right persists even in the event of supervening inca-
pacity. See also ch. 5.
7 I Kennedy, A Grubb, Medical Law: Text with Materials 2nd. edn. (London, Butterworths,
1994) at 1278.
8 See for example Re J (A Minor) [1992] 4 All ER 614 CA.
9 R v. Cox (1992) 12 BMLR 38.
10 Supreme Court of the Netherlands, Criminal Chamber, 21 June 1994, nr 96.972, and the fol-
lowing discussion of assisted suicide.

11 A full discussion of the concept of best interests is included in ch. 3.
Introduction 37
or clinical judgements. Tensions are most likely to occur in clinical situations

where the clinician believes it to be in the patient’s best interests to discontinue
therapy but the patient or relatives disagree, or where the relatives or patient
wish the treatment to be discontinued against the advice of the doctor. Hence
when a caring physician is confronted by the disturbing realisation that con-
ventional medicine is unable to assuage a patient’s distress and symptoms the
pleas of patients and relatives for an end to suffering may be compelling.
Where a patient is unable to speak for herself or express her preferences the
problems are exacerbated. Good medical practice dictates that the views of
relatives should be considered, but medical ethics and legal precedents suggest
that these views should not be decisive.12 Families may be understandably anx-
ious for treatment to be either continued or terminated in opposition to the
beliefs of the clinician responsible for the decision. Whether the decision is to
cease or continue medical treatment, doctors may need to be “tactfully resist-
ant” in order to avoid sacrificing the interests of the patient “to the emotional
distress of the relatives”.13 The dilemma for the doctor lies in attempting to
respect the wishes of patient and family while maintaining legal and ethical
standards of care.
But should patients and their relatives be entitled to expect compliance with
their requests for a humane and dignified, but permanent, resolution? Or,
should they exhibit a greater degree of moral responsibility by not placing the
doctor in the position of being forced to choose between legal and professional
suicide, and the ultimate act of compassion? If the exercise of patient’s rights
compromises the professional integrity of those responsible for the provision of
medical care the advancement of those rights becomes problematic. Celia Wells
identified the issues precisely when she argued that “refusal of life-saving treat-
ment cannot always be an individual prerogative”.14 The impact of such a
refusal on others must always be considered, especially where the demands of
patient autonomy may place the doctor in a position almost as intolerable as
that occupied by the patient.
Despite this, patients, and their relatives, continue to seek clinically assisted
death in order to curtail what they perceive as the futile suffering associated with
protracted dying. But doctors and other health care professionals who comply
with requests to hasten death expose themselves to criminal and professional
12 Re G [1995] 3 Med LR 80, [1995] 2 FLR 528, and Practice Note (persistent vegetative state:
withdrawal of treatment) [1996] 4 All ER 766 at 767–8 provide authority for this point. In the USA
however, the principle of substituted judgement has been recognised and used, for example, in
Cruzan v. Dept of Health of Missouri 110 S Ct 2841 (1990). Airedale NHS Trust v. Bland [1993] 1
All ER 821 per Lord Goff at 872 considered substituted judgement and dismissed it as having no part
to play in English law. Some of the problems associated with placing too great an emphasis on the
opinions of family members are highlighted in B Winter, S Cohen, “ABC of Intensive Care:
Withdrawal of Treatment” (1999) 319 BMJ 306.
13 E Wilkes, “On Withholding Nutrition and Hydration in the Terminally Ill: Has Palliative
Medicine Gone Too Far? A Commentary” (1994) 20 Journal of Medical Ethics 144–5 at 145.
Law 65, at 65.

sanction. In practice compromises are frequently necessary to maximise the right

of the individual to choice, autonomy and bodily integrity, within the defined
responsibilities of the doctor in respect of that right. Thus the present legal posi-
tion concerning life-limiting treatment decisions often fails to afford either group
the degree of protection to which they should be entitled, with a consequent loss
of dignity for both.
In clinical situations where the continued provision of medical treatment rep-
resents little more than a prolongation of the dying process the dilemma, and the
caring or killing dichotomy, is particularly acute. Here the possible treatment
options include, the indefinite continuation of palliative treatment, withholding
or withdrawing treatment, the administration of increasing doses of pain reliev-
ing medication until respiratory suppression occurs (the principle of double
effect), the provision of drugs to assist the patient to cause her own death
(physician-assisted suicide) and mercy killing. These options will be scrutinised
in turn to assess the medical, legal, ethical, and social implications of each, as
well as their potential impact on individual choice and the death with dignity
debate. A detailed analysis of the legal aspects of causation, acts and omissions
and the duty to provide care will provide a backdrop to the investigation of
selective non-treatment, while criminal intention and its relationship with
motive will be scrutinised alongside the discussion of the principle of double
effect.
THE INDEFINITE CONTINUATION OF PALLIATIVE TREATMENT
The terms “palliative care” and “palliative medicine” describe a treatment

regime that recognises cure as impossible but aims to alleviate suffering wher-
ever practicable. The World Health Organisation (WHO) definition of pallia-
tive care describes the discipline as:
“the active, total care of patients whose disease is not responsive to curative treatment.
Control of pain, other symptoms and psychological, social and spiritual problems is
paramount. The goal of palliative care is the achievement of the best quality of life for
patients and families”.15
Within this framework, palliative medicine uniquely regards the holistic needs
of the patient and her family as virtually indistinguishable and quality of life as
central.16 Many believe that this is an ideal mechanism for promoting dignity in
dying.
For some patients indefinite palliative treatment is the only available therapy.
In these circumstances, maintaining the patient in as comfortable and pain free
15 World Health Organisation, cited in B Farsides, “Palliative Care—a Euthanasia Free Zone?”,
(1998) 24 Journal of Medical Ethics 149.

16
Further discussion of the concept of palliative care as embodied in the hospice movement is
detailed in ch. 6.
Indefinate Palliative Treatment 39
condition as possible and complying, wherever feasible, with the patient’s

wishes regarding the administration of treatment, are the aims of palliative
medicine. Where the patient has the capacity to participate in the decision-
making process patient autonomy can usually be upheld and patients may
exercise their right to accept or refuse the offered treatment according to their
own preferences. The indefinite continuation of palliative care can become con-
tentious however if patients, or their carers, consider it to be a futile prolonga-
tion of life.
Palliative care is generally associated with patients who are terminally ill and
most frequently with those receiving care in a hospice environment. Here it is
unlikely that the indefinite continuation of palliative care will be a realistic
option or become problematic since life span is inevitably limited by disease.
More compelling dilemmas concerning the indefinite continuation of palliative
treatment can perhaps be illustrated by considering the rather desperate posi-
tion of patients who live in a permanent vegetative state (PVS).17 Clearly these
patients are not typical of those one would usually expect to be receiving pallia-
tive care because they are incapacitated and may be expected to survive for some
considerable time. Many commentators regard continuing to maintain patients
in PVS as unethical because it is futile and cannot benefit the patient.18
However, hard decisions are born of difficult cases so, not surprisingly, such an
analysis may be resisted in favour of arguments contending that human life has
value in and of itself, which dictate that treatment should be continued indefin-
itely.19 Hence the range and severity of issues concerning the treatment of
patients in PVS provides an extreme example of those relating to the indefinite
continuation of palliative care in general.
PVS was first legally defined in the American case Re Karen Quinlan20 where
the court recognised that this condition dictates that the brain “no longer has
any cognitive function” but retains “the capacity to maintain the vegetative
parts of neurological function”.21 Because cognitive function and social inter-
action have been irretrievably lost, patients in this condition are devoid of many,
if not most, of the attributes which define each of us as distinct human person-
alities. The unique reasoning character of the individual has been destroyed
17 This condition was first described by B Jennet and F Plum, “Persistent Vegetative State After
Brain Damage” (1972) 1 The Lancet 734–7, and has been distinguished from other medical condi-
tions in R Cranford, H Smith “Some Critical Distinctions Between Brain Death and Persistent
Vegetative State” (1979) 6 Ethics in Science and Medicine 199. The term “permanent” is now
regarded as more appropriate than “persistent” since it denotes no prospect of recovery or improve-
ment. A persistent vegetative state is one which may become permanent or may improve with time.
18
See for example B Jennet, “Letting Vegetative Patients Die” in J Keown, (ed.) Euthanasia
Examined: Ethical, Clinical and Legal Perspectives (Cambridge, Cambridge University Press, 1997)
at 169.
19 J Boyle, “A Case for Sometimes Feeding Patients in PVS” in J Keown, (ed.) Euthanasia
Examined: Ethical, Clinical and Legal Perspectives (Cambridge, Cambridge University Press, 1997)
at 189, offers one such argument.
20 (1976) 70, NJ10, 355 A 2nd 647.
21
Ibid, at 650.
together with all capacity for awareness and memory. PVS patients have periods
when they appear to be awake, though unaware, and others when they seem to
be sleeping. There is no observable cognitive perception of pain or discomfort
although they do exhibit local reaction to painful stimuli. They survive as purely
physical beings,22 a condition which many regard as undignified.
In Britain it is established medical practice not to confirm the diagnosis of PVS
until one year after the onset of brain damage.23 There are no wholly definitive
criteria for defining or diagnosing PVS, with some professional bodies drawing
distinctions according to criteria like the age of the patient and whether or not
the PVS is the result of trauma.24 The evidence base for diagnosing permanence
is reputed to be poor,25 and clinically the features of PVS are variable such that
patients may exhibit some limited awareness but still meet the criteria for PVS.
Diagnosis therefore remains contentious.
An early Japanese study of one hundred and ten PVS patients, reported that
approximately half the patients died within the first year, while more than a
quarter survived for over three years. Four patients continued to live for ten
years or more, but generally the possibility of recovery remained slight:
“Vegetative patients have a consistently poor prognosis. During the three year follow
up period, more than 60 per cent of the patients died, despite attentive medical care. On
the other hand, some patients regained awareness and were able to speak a little but
were unable to resume activity as a social human being. Persistent recovery has been
attained in three cases . . . only one patient regained nearly normal brain function”.26
The criteria adopted by this study for the diagnosis of PVS are questionable
since true PVS offers no scope for recovery, though long term survival is possi-
ble. Perhaps the term “recovery” used in this context simply expresses survival
or maybe differentiating more precisely between persistence and permanence
would aid clarity?
Later research by Keith Andrews has suggested that the incidence of true PVS
is lower than previously thought and that some level of actual recovery may
indeed be possible even after considerable periods of time have elapsed.27 The
methods adopted by this research team are themselves open to critique however.
The research results were based on a retrospective study of forty patients admit-
ted to a specialist unit who had been referred with a diagnosis of PVS. Of these
forty patients it was claimed that seventeen had been incorrectly diagnosed
22
J Fletcher, “Medicine and the Nature of Man” (1973) 1 Science, Medicine and Man 93.
23
See BMA Committee for Medical Ethics discussion paper The Treatment of Patients in PVS
September 1992.
24 B Jennet, “Letting Vegetative Patients Die” in J Keown, (ed) Euthanasia Examined: Ethical,
Clinical and Legal Perspectives (Cambridge, Cambridge University Press, 1997) 169–188 at 174–5.
25 According to Professor Derick Wade in a lecture entitled “Permanent Vegetative State” pre-
sented at The City of Westminster Law Society, 13 April 2000.

26 Higashi, Sakato, Hatano “Epidemiological Studies on Patients with a Persistent Vegetative
State”, (1977) 40 Journal of Neurology, Neurosurgery, and Psychiatry 876.

27 K Andrews, L Murphy, R Munday, C Littlewood, “Misdiagnosis of the Vegetative State:
Retrospective Study in a Rehabilitation Unit” (1996) 313 BM J 13–16.

because they later exhibited signs of awareness. Yet ten of the seventeen were
admitted to the unit less than twelve months after their initial injury and hence
failed to meet the established criteria for diagnosing PVS to begin with.28
Nevertheless, it has been estimated that at any one time there are at least fifteen
hundred PVS patients in the United Kingdom who have been diagnosed using
established diagnostic criteria.29 Also, contrary to Andrews work, which sug-
gests high levels of false positive diagnoses, earlier studies cautioned that due to
inaccurate underdiagnosis there are potentially many more.30
Patients survive in a PVS without the assistance of artificial life support sys-
tems and do not conform to criteria for diagnosing brain stem death. As was dis-
cussed in chapter one, they remain clinically and legally alive, although concerns
have been expressed as to what kind of life they live.
“What is meant by ‘life’ in the moral precept which requires respect for sanctity of
human life? If the quality of life of a person . . . is non-existent since he is unaware of
anything that happens to him, has he a right to be sustained in that state of living death
and are his family and medical attendants under a duty to maintain it”.31
Similar views about degenerating quality of life are sometimes expressed by

those suffering from terminal and incurable illnesses, and their carers. Though
PVS patients will never be able to express a view again, it must be recognised,
that they are in many respects inseparable from the people who existed before
they entered PVS. No patient exists in a vacuum. They all have a social history
that persists beyond the hospital bed and the body occupied by the victim of ill-
ness. Treatment decisions cannot be taken in isolation or without regard to
prior lifestyle and opinions because this “is not simply a technical medical
issue”,32 and to fail to continue with treatment may be regarded as a devalua-
tion of the worth of that patient.33 Decisions to continue with palliative care
indefinitely also have implications beyond those associated with the individual
patient however. “The burden is great on patients . . . on their families, on the
hospitals, and on those in need of hospital beds already occupied”.34 The impact
of the indefinite continuation of palliative care upon each of these groups and
the options available to them is worthy of further scrutiny.
28
R Cranford, “Misdiagnosing the Persistent Vegetative State” (1996) 313 BMJ 5. The Royal
College of Physicians have developed guidelines for the diagnosis of PVS but these have sometimes,
as in Re H (adult: incompetent) (1997) 38 BMLR 11, been found imprecise. For an overview of the
issues see Adam Nicolson, “Caught Between Life and Death”, Sunday Telegraph Review, 26 May
1996 1–2.
29
“Institute of Medical Ethics Working Party on the Ethics of Prolonging Life and Assisting
Death. Withdrawal of Life Support from Patients in PVS” (1991) 337 The Lancet 96–98.
30
K R Mitchell, I H Kerridge, T J Lovat, “Medical Futility, Treatment Withdrawal and the
Persistent Vegetative State” (1993) 19 Journal of Medical Ethics 71.
31
Airedale NHS Trust v. Bland [1993] 2 WLR 316, per Lord Browne-Wilkinson.
32
P D G Skegg, Law, Ethics and Medicine (Oxford, Clarendon Press, 1988) at 144.
33
J M Finnis, “Bland: Crossing the Rubicon?” (1993) 109 Law Quarterly Review 329, at 334.
34
H K Beecher, “A Definition of Irreversible Coma” (1968) 205 Journal of the American Medical
Association 337–340 at 338.
A regime of continuing palliative care can involve carers in many months, or

years, of burdensome and stressful toil performed in the knowledge that it can
never improve the prognosis of the patient. Therefore a decision to continue
indefinitely with palliative care carries with it social and emotional costs, par-
ticularly to the carers and family. Observing the steady decline of a person for
whom medicine offers no hope is demanding for professional and emotional
carers alike and inevitably exacts a heavy toll. As time passes, requests to dis-
continue treatment become more likely but these requests carry costs in them-
selves since relatives who have loyally cared for a patient over a protracted
period may feel uneasy about advocating a decision to curtail treatment know-
ing that the consequence will be death. Equally significant is the impact upon
others who require hospital care, particularly if the continuation of futile pal-
liative care effectively denies them treatment.
Determining which patients, or which conditions, have the most worthy or
most just claim to any particular facility is a complex process, especially where
the funding for medical care is centrally distributed. The provision of scarce
resources is readily conceived of in terms of competing claims to be assessed
according to a variety of preordained criteria,35 especially as most methods of
resource allocation include a comparative assessment. Many are controversial
both conceptually and in their application.36
For example the allocation could be made by assessing the patient according
to a test that calculates the probable medical benefit that will result from treat-
ment. Clearly the prognosis for a patient diagnosed as terminally ill or incurable
is poor by comparison with other patients whose conditions are either tempo-
rary or allow scope for recovery,37 in which case the claims of a patient receiv-
ing only long term palliative care are always likely to be less favourably
assessed. Another method involves making a comparison on the basis of the
individual patient’s value to society. This calculation is also highly subjective,
resulting at best in inconsistency and at worst in discrimination. How, for
example, is it possible to distinguish between the value to society of any two dif-
ferent individuals? Consider the situation where a gifted doctor has a confirmed
diagnosis of PVS and a convicted murderer has recently sustained a severe head
injury from which she may or may not recover. Which is in greater need of treat-
ment? Which is likely to be of the most, or least, value to society? And, what if
one has several children in need of support and guidance while the other has
none? These rhetorical questions serve to emphasise the competing claims that
35
C Newdick, Who Should We Treat? (Oxford, Oxford University Press, 1996), examines the
issue in terms of the legal response to the competing claims of patients, doctors, and managers to
NHS resources.
36
The issues are clearly outlined and discussed in, P A Lewis and M Charney, “Which of Two
Individuals Do You Treat When Only Their Ages are Different and You Can’t Treat Them Both?”
(1989) 15 Journal of Medical Ethics 28.
37
Higashi, Sakato, Hatano “Epidemiological Studies on Patients with a Persistent Vegetative
State” (1977) 40 Journal of Neurology, Neurosurgery, and Psychiatry 876, demonstrated a recovery
rate of below 3%.
might be made based on justice but fail intrinsically to address the problems as
they relate to individual cases.
The concept of quality adjusted life years (QALYs), essentially an economic
indicator, is one mechanism developed to help resolve some of these issues.38
Though now largely disregarded, QALYs represent a numerical calculation of
life expectancy and quality. Scores are attained on a scale which values each year
of healthy life as one, death as zero, and each year of unhealthy life as less than
one. The scale allows for the degree of the reduction in quality of life to be
accounted for in the extent to which the score falls below one. Therefore, “a life
considered to be worse than death can be afforded a minus score”.39 QALYs are
dependent upon medical personnel judging the potential quality of life of other
people. Such assessments are inherently value laden and subjective. Patients may
themselves value some aspects of their lives more than others and the opinions
of those who are responsible for allocating resources may run counter to those
values. A stereotypical example presents the scenario where the patient relishes
and would deliberately choose to sit and smoke all day while watching tele-
vision, while the clinician making the assessment might be appalled by the
prospect. Moreover, QALYs are inherently disadvantageous to certain groups
of patients, specifically the elderly and those whose prognosis is poor. If the
treatment concerned is purely palliative and the patient has no prospect of
recovery, decisions made by applying the quality adjusted life years standard
can never be beneficial.
Other methods of determining how resources should be allocated have been
suggested,40 but most frequently, medical treatment decisions are still taken on
the basis of the clinical assessment of the individual patient’s medical condition
and its prognosis. Describing treatment as “not clinically indicated” where it is
the only treatment maintaining life is inevitably contentious. A decision to dis-
continue palliative treatment may easily be construed as euthanasia through the
back door, especially where concerns about rationing and resource allocation
are raised.41
However, if an individual patient’s condition dictates that the prospect of
improvement is minimal or non-existent even with sustained medical interven-
tion, all the costs of indefinitely continuing to provide treatment must be
weighed against the remoteness of securing a beneficial outcome. Dan W Brock
offers a useful analogy here stating that:
38
See A Williams, “The Economic Role of ‘Health Indicators’”, in G Teeling-Smith (ed.)
Measuring the Social Benefits of Medicine (Oxford, Oxford University Press, 1983).
39 J K Mason & R A McCall Smith, Law and Medical Ethics 5th edn. (London, Butterworths,
1999) at 303.
40 Examples include, E Nord, “An Alternative to QALYs: The Saved Young Life Equivalent
(SAVE)” (1992) 305 British Medical Journal 875, and R Klein, “Dimensions of Rationing: Who
Should Do What?” (1993) 307 British Medical Journal 93.
41 T Hope, D Springings and D Crisp, “Not Clinically Indicated: Patients Interests or Resource
Allocation?” (1993) 306 BMJ 379.

“it is not considered any requirement of justice to continue to search for those lost at
sea or trapped in mines so long as there is any possibility of saving them, no matter
how small”.42
Applying Brock’s reasoning to decisions to discontinue the treatment in appro-

priate clinical circumstances suggests that they are not inherently unjust.
Consequently selectively withholding or withdrawing treatment may be the
most ethical and dignified response.
WITHHOLDING OR WITHDRAWING TREATMENT
The implications of withholding or withdrawing treatment may be the same

where the result will be the end of a patient’s life, but the process of making such
decisions differs. Withholding treatment implies that the therapy in question
has never been started, while a decision to withdraw treatment suggests that a
regime previously considered beneficial will be discontinued. The individual
patient’s medical condition will determine whether and when a medical decision
might be taken to withhold or withdraw treatment. Usually these decisions will
only be taken in relation to patients who are terminally ill or incurable, though
occasionally a rare clinical situation dictates that a competent and sensate
patient is receiving only basic life sustaining treatment.43 Here it is possible that
the patient herself will take a life-limiting decision by refusing to consent to con-
tinued treatment,44 and all mentally competent patients have an absolute legal
right to make such a decision, and to have it upheld, as long as the implications
of that decision have been explained and understood.45 Lord Keith reiterated
this right in Bland, when he said that, “. . . a person is completely at liberty to
decline to undergo treatment, even if the result of his doing so will be that he will
die”.46 In practice, the endorsement of patients’ rights to autonomy in decisions
to withdraw life-sustaining treatment may give rise to tensions within the
doctor-patient relationship, particularly where death will be the inevitable out-
come.47 However, if a competent patient seeks to retain control over the dying
process by selecting this option as an expression of personal autonomy, no liab-
ility will normally attach to the clinician who does not intervene.
42
D W Brock, Life and Death (Cambridge, Cambridge University Press, 1993) at 240, emphasis
added.
43
Paraplegia and motor neurone disease amongst them.
44
Patients who are able to decide for themselves are entitled to decline to consent to any treat-
ment at will, see Re T (adult: refusal of treatment) [1992] 4 All ER 649, [1992] 3 WLR 782.
45 There are exceptions to this general rule, one of which concerns the competent minor, see for
example Re W(a minor)(Medical treatment) [1992] 4 All ER 627 CA and further discussion in chs.
3 and 5.
46 [1993] 1 All ER 821, at 860.
47 These tensions were graphically illustrated in Brian Clark’s dramatic play, Whose Life is it
Anyway? (New York, Dodd Mead, 1979), wherein the fictional character Ken Harrison requests to
be discharged from hospital so that all treatment will be withdrawn. Further discussion of these
issues is contained in ch. 4.
Withholding or Withdrawing Treatment 45
Even where the patient does not or cannot request treatment withdrawal,
therapy can be legitimately terminated if its futility denotes that to continue
with it would be contrary to the best interests of the patient.48 If there is no
demonstrable clinical benefit, therapies, such as antibiotics to fight infection and
artificially administered nutrition and hydration,49 may be selectively with-
drawn to allow the patient to die peacefully and with dignity. Control of symp-
tomatic pain and distress is fundamental to good palliative care in these
circumstances and should be maintained as part of basic medical care.50
However, because withholding or discontinuing these types of treatment will
result in death regardless of the underlying pathology, treatment decisions taken
in the expectation that death will result must always be carefully considered.
Where there are doubts about its efficacy or disputes between professional and
emotional carers a High Court declaration may be required to ensure that this
may be lawfully accomplished.51
Potential criminal liability is assessed according to the nature of the conduct
involved. The extent of liability will depend upon an analysis of what was the
cause of death; whether the conduct which resulted in death is properly cat-
egorised as an act or an omission; and, whether a duty of care demands that
treatment should have been continued in the particular circumstance.52 The fol-
lowing discussion considers the legal and ethical principles involved and
explains how the courts will apply established criminal law principles in order
to determine the lawfulness of withdrawing treatment.
Causing Death
Verification of the actual cause of the patient’s death is central to the determina-
tion of culpability in any case where a clinician may be criminally liable for a
48 In Airedale NHS Trust v. Bland [1993] 1 All ER 821, Lord Goff stated that, “. . . in a case such
as the present, it is the futility of the treatment which justifies its termination”, at 870. However in
some situations these decisions give rise to frequent controversy, see for example J Sanders,
“Medical Futility: CPR” in R Lee and D Morgan, Death Rites: Law and Ethics at the End of Life
(London, Routledge, 1996) 72–90, which discusses issues concerning “do not resuscitate orders”.
Ch. 3 offers a detailed analysis of the concept of best interests, its application and assessment.
49 Innumerable medical conditions can render a patient incapable of sustaining nutrition and
hydration without active medical intervention. Included here are PVS, anorexia nervosa and termi-
nal cancer complicated by intestinal obstruction, amongst others. It is also possible for a patient to
be rendered incapable of maintaining her own nourishment and hydration through the imposition
of medical treatment, especially where a patient who is terminally ill requires heavy sedation.
50 Basic care is defined as the therapy required to keep an individual comfortable; generally this
will include the provision of general hygiene and pain relief. The Law Commission has reaffirmed
the view of the BMA and nursing professional bodies, that no patient should have the right to refuse
basic care because of the distress that such a refusal would be likely to cause carers and other
patients, see Law Commission Report 231, Mental Incapacity, Item 9 of the Fourth Programme of
Law Reform: Mentally Incapacitated Adults (London, HMSO, 1995) at para. 5.34.
51
Airedale NHS Trust v. Bland [1993] 1 All ER 821, Practice Note [1994] 2 All ER 413.
52
The mens rea or intentions of the clinician are also relevant but will be analysed in detail in the
following discussion of double effect.
patient’s death. Where death occurs following treatment withdrawal, the cause
of death seems obvious in the light of earlier comments about the certainty of
death resulting from lack of nutrition and hydration, but sometimes the appar-
ently obvious cause of death is not the actual or legal cause.
R v. White,53 where Mrs White’s son decided to kill his elderly mother by plac-
ing poison in her bedtime drink, is a case in point. White prepared a hot bever-
age, took it to his mother at bedtime and in the morning the old lady was found
dead in her chair, but the drink was only partially consumed. She had not
ingested sufficient of the poison to kill her and her death was attributed to a heart
attack. White clearly intended to kill his mother and had taken steps so to do, but
had not actually caused her death. He was convicted of attempted murder.
Similarly, the circumstances surrounding a patient’s death may suggest that a
particular feature of the treatment has directly resulted in death, but before
criminal liability can be attached the factual and legal cause of death must be
established. Arguably if a patient dies because treatment is not administered, it
is not the failure to treat that has caused death but the condition that generated
the need for treatment in the first place.54 In which case it is tempting to con-
clude that this indicates that medical intervention will not break the chain of
causation between the onset of the condition and the patient’s eventual demise,
although legal precedents do not wholly support this contention.
In R v. Jordan55 the defendant was convicted of murder after his victim died
from serious stab wounds he had inflicted. Whilst in hospital however, a doctor
had administered the antibiotic terramycin even though the victim was known
to be allergic to it. Further negligent treatment resulted in a fluid imbalance,
which culminated in the patient’s lungs becoming water-logged. In the Court of
Appeal it was held that the original wound was virtually healed when the victim
died and that death was caused by the grossly negligent and “palpably wrong”
treatment that resulted in pneumonia. It was also recognised that ordinarily,
“. . . death resulting from any normal treatment employed to deal with a felo-
nious injury may be regarded as caused by the felonious injury”, but that
because, “. . . this was not normal treatment”,56 the causal link was broken.57
Jordan’s conviction was quashed. But Jordan is an exceptional case in British
law and a series of subsequent cases have adopted a contrary stance.58
R v. Smith59 concerned the administration of “thoroughly bad” treatment to
the victim of a barrack room brawl. Despite the role played by the poor quality
53
[1910] 2 KB 124.
54 Of course this contention is dependant on the absence of a duty to treat the patient. Where such
a duty exists and is neglected criminal or tortious liability will attach.
55 (1956) 40 Crim App Rep 152.
56 Ibid.
57 H L A Hart and A M Honoré, Causation and the Law 2nd edn. (Oxford, Clarendon Press,
1985) at 355.
58 See R v. Smith [1959] 2 All ER 193, R v. Blaue [1975] 3 All ER 446 and R v. Cheshire [1991]
3 All ER 670.
59
[1959] 2 All ER 193.
of the treatment, the chain of causation between the victim and his assailant was
held to have remained in tact. Lord Parker CJ explained that:
“if at the time of death the original wound is still an operating cause and a substantial
cause, then the death can properly be said to be the result of the wound, albeit that
some other cause is also operating. Only if it can be said that the original wound is
merely the setting in which another cause operates can it be said that the death does
not result from the wound . . . only if the second cause is so overwhelming as to make
the original wound merely part of the history can it be said that the death does not flow
from the wound”.60
R v. Cheshire61 further negates Jordan’s suggestion that the chain of causation

may be disrupted by the intervention of medical treatment. Here the victim died
of asphyxiation following the negligent management of a tracheotomy per-
formed in the initial stages of treating gunshot wounds inflicted by the defend-
ant. At the time of death the bullet wounds were themselves no longer life
threatening but still the court held that, “even though negligence in the treat-
ment of the victim was the immediate cause of his death, the jury should not
regard it as excluding the responsibility of the accused unless the negligent treat-
ment was so independent of his acts, and in itself so potent in causing death, that
they regard the contribution made by his acts as insignificant”.62
Regardless of the fact that the treatment administered to this patient was
clearly negligent, the Court of Appeal regarded the narrowing of the trachea,63
as not only a “rare complication” but also “. . . a direct consequence of the
appellants acts, which remained a significant cause of his death”.64 Unlike
Smith, which can be distinguished on its facts, Cheshire and Jordan are factu-
ally similar. Both concern negligent medical treatment of patients whose injuries
were substantially remedied, yet the judgments differ in emphasis and outcome.
Of course causation is conceptually complex and requires recognition of the
possibility of multiple causes, but these judgments may also reflect an inherent
reluctance in the courts to acquit obviously implicated defendants at the risk of
incriminating doctors.65 Where the actions of a defendant can be shown, how-
ever unsatisfactorily, to remain operative, substantial or significant causes of
death, the intervention of medical treatment is unlikely to damage the chain of
causation. The issues are often further complicated by the fact the alleged vic-
tim has refused to consent to treatment rather than any suggestion that the med-
ical response has been inappropriate. Here the possibility exists for death to be
attributed to more than one cause.
60 Ibid at 198.
61 [1991] 3 All ER 670.
62 Ibid at 678.
63 A recognised but unusual side effect of tracheotomy.
64 [1991] 3 All ER 670, at 678.
65 David W Meyers also promulgates this view in The Human Body and the Law (Edinburgh,
Edinburgh University Press, 1990) at 98.

Such was the situation in R v. Holland66 where the victim sustained cuts to
one of his fingers when assaulted by the defendant. His refusal of medical treat-
ment meant that he subsequently died of tetanus. The defendant was found to
have caused his death, despite the treatment refusal, because the original wound
remained an operating and substantial cause of death. Medical treatment would
have been unnecessary but for the action of the defendant in assaulting his vic-
tim. Similarly, in R v. Blaue67 where the victim suffered four serious stab
wounds, one of which punctured a lung. In hospital she was advised that the
nature and severity of her injuries meant that she required a blood transfusion
in order to save her life, but being a Jehovah’s Witness, she declined to consent
to a blood transfusion and ultimately died from internal bleeding. On appeal the
defendant argued unsuccessfully that it was the lack of medical treatment that
had caused her death. His conviction was upheld because:
“the physical cause of death in this case was the bleeding into the pleural cavity aris-
ing from penetration of the lung. This was not brought about by any decision made
by the deceased girl but by the stab wound”.68
The reasonableness of the victim’s refusal of treatment, and its impact upon the
chain of causation and therefore on the defendant’s culpability, was also ques-
tioned but Lawton LJ denied its relevance:
“It has long been the policy of the law that those who use violence on other people
must take their victims as they find them. This in our judgement means the whole man,
not just the physical man. It does not lie in the mouth of the assailant to say that his
victim’s religious beliefs which inhibited him from accepting certain kinds of treat-
ment were unreasonable. The question for decision is what caused the death? The
answer is the stab wound”.69
The physical cause of death was the bleeding caused by the stab wound inflicted
by Blaue. The fact that the victim chose to decline medical treatment was clearly
also a cause of her death, but it was held to be subordinate to the factual cause
of her death. Where a patient dies after declining to accept medical treatment
death would be caused by the underlying medical condition combined with the
treatment refusal, but where a doctor decides not to provide treatment the legal
position is less clear cut.
Similarly in R v. McKechnie and Others70 the victim died in hospital more
than four weeks after being assaulted when the defendants broke into his home.
On admission to hospital he was found to be unconscious, having sustained
acute head injuries as a result of a severe beating and being hit over the head with
a television set. While undergoing treatment a bleeding duodenal ulcer was also
diagnosed which would require surgical intervention. However, the severity of
66
[1841] 2 Mood & R 351.
67
[1975] 3 All ER 446.
68
Ibid, per Lawton LJ at 450.
69
Ibid.
70
(1992) 94 Crim App Rep 51.
the head injuries was such that the risk of administering a general anaesthetic
was too great and no operation was performed. The victim died when the duo-
denal ulcer perforated. At issue was whether McKechnie had caused the victim’s
death since the injuries he inflicted were remote from the ulcer that ultimately
killed him. At first instance the jury were directed that, in order to convict, they
must be satisfied that the head injuries had significantly contributed to the death;
they were. On appeal the direction to the jury and the verdict were endorsed
because the decision not to operate was regarded as reasonable in the circum-
stances and the defendant’s actions were more than a minimal cause of death. If
the victim’s anaesthetic tolerance had not been reduced by the beating he
received from McKechnie, his ulcer could have been treated and he would not
have died. The head injury was not the only cause of death but it was a signifi-
cant one without which death could have been avoided.
In each of these cases defendants attempted to define medical intervention as
an intervening act with the capacity to break the chain of causation between the
injury and the death. With the notable exception of Jordan, the courts have con-
sistently rejected an argument which would clearly absolve a culpable assailant
from responsibility. This rejection has not however excluded the possibility of
medical treatment or non-treatment being a causative factor in the death of a
patient, which could result in criminal culpability. What if the victim is a patient
suffering from disease or accidental injury where there is no culpable defendant,
and the clinicians decline to treat or commence treatment and subsequently
withdraw treatment? The case of Tony Bland,71 the innocent victim of the
Hillsborough Football Stadium disaster, is a prime example.
Tony Bland never recovered from the trauma he received in the Hillsborough
stadium in April 1989. He remained in a PVS with no prospect of improvement
or recovery for more than three years during which time his parents and the
clinicians caring for him resolved to allow him to die by withdrawing nutrition
and hydration. What would be the cause of death if Tony Bland was allowed to
die in this way? Would it be the conduct of the clinician in withholding treat-
ment or would it be the injuries sustained at the football match?
The situation is not analogous to one where mechanical life support is with-
drawn from a patient who is subsequently declared dead. There criminal liabil-
ity does not ordinarily flow as a result of cessation of life support because a
patient who is wholly maintained by a mechanical life support system, and is
incapable of life independent of the machine is, according to established criteria
for the diagnosis of brain stem death, already medically and legally dead prior
to the disconnection of the ventilator. As long as the patient has been diagnosed
as brain stem dead before the treatment is discontinued the clinician will not be
responsible for causing death; a point which was emphasised by Lord Lane in R
v. Malcherek.72
71 [1993] 1 All ER 821, at 870.

72 [1981] 2 All ER 422.
“Where a medical practitioner, using generally acceptable methods, came to the con-
clusion that the patient was for all practical purposes dead and that such vital func-
tions as remained were being maintained solely by mechanical means, and accordingly
discontinued treatment, that did not break the chain of causation between the initial
injury and the death”.73
Hence, a doctor who follows this course of action, “would simply be allowing
the original injury to operate to cause death and would thus be protected from
criminal liability”.74
Following Holland, Blaue and McKechnie, where the victims were not
treated and the wounds inflicted by their assailants were deemed to have caused
their deaths, it might be plausible to conclude that failure to treat would not
constitute the cause of death in Tony Bland’s case. However, in those cases
treatment was never instigated, it was withheld rather than withdrawn.
Therefore to attribute the cause of death to medical intervention would be
unsatisfactory unless there was a clear duty to provide the treatment in the cir-
cumstances.75 In Bland, the treatment had been provided for over three years so
it was not a case of failing to treat but of deliberately ceasing to treat. So the
withdrawal of treatment must surely constitute a cause of death even if other
causes, such as the original injury, co-existed because Tony Bland would not
have died at that time had treatment been continued.
Lord Goff avoided reaching this conclusion by suggesting that as long as the
withdrawal of treatment from Tony Bland was lawful, it would not constitute
the cause of death. Accordingly death would have been caused by the injuries
sustained in the Hillsborough football stadium.
“The established rule [is] that a doctor may, when caring for a patient who is, for
example, dying of cancer, lawfully administer painkilling drugs despite the fact that
he knows that an incidental effect of that application will be to abbreviate the patient’s
life. Such a decision may properly be made as part of the care of the living patient, in
his best interests; and, on this basis the treatment will be lawful. Moreover, where the
doctor’s treatment of his patient is lawful, the patient’s death will be regarded in law
as exclusively caused by the injury or disease to which his condition is attributable”.76
But cause is an objective phenomenon; a matter of fact. As such, causing death

may or may not attract criminal liability depending on the presence or absence
of the other elements of the crime and it is these which denote the lawfulness or
otherwise of the conduct concerned. Lord Mustill offered an interpretation of
the relevance of causation that conforms to this model,
“the argument presented to the House asserts that for the purpose of both civil
and criminal liability the cause of Anthony Bland’s death . . . will be the Hillsborough
73 [1981] 2 All ER 422, at 428–9.

74 R Cooper, Comment “Withdrawal of Life Support—Lawful?” [1993] Journal of Criminal Law
283 at 286.
75 See below for a discussion of the when and where a duty to act will arise.
76 [1993] 1 All ER 821, at 868.
disaster. As a matter of the criminal law of causation, this may well be right, once it is
assumed that the conduct is lawful . . . It does not perhaps follow that the conduct of
the doctors is not also causative, but this is of no interest since if the conduct is lawful
the doctors have nothing to worry about. If on the other hand the conduct is unlaw-
ful, then it is in the same case as active euthanasia or any other unlawful act by doc-
tors or laymen. In common sense they must all be causative or none; and it must be all,
for otherwise euthanasia would never be murder”.77
Doctors may effectively cause the death but in so doing they will not attract
criminal liability if the causative conduct is considered lawful. Assessing the
lawfulness or otherwise of a course of conduct is reliant upon the characterisa-
tion of the conduct as an act or an omission and the existence, or otherwise, of
a duty of care.
Act or Omission?
Where an action causes death, the commission of that act can be defined as the
actus reus of homicide. Ordinarily the actus reus of murder will be a positive
action which results in death and criminal liability will arise where the actus
reus coincides with the intention to kill (the mens rea of murder). Where there
is a failure to act rather than a positive action, that failure is described as an
omission. An omission causing death will generally give rise to criminal liability
only where the person who failed to act was under a duty to act in the particu-
lar circumstances of the case as is illustrated by R v. Gibbins and Proctor.78 The
facts were that Gibbins and his common-law wife omitted to provide food for
his child who died as a consequence. Gibbins had given Proctor money to buy
food but she had neglected to do so, and he failed to ensure that the child was
fed. The Court of Appeal held that the judge at first instance was correct in
directing that they were guilty of murder if their intention in withholding food
was to cause grievous bodily harm.79 The father had a duty towards his child
and his mistress had assumed a similar duty, hence, even though the child’s
death was caused by an omission, the couple could be criminally responsible for
murder.
To assess the potential criminal liability of those withdrawing medical treat-
ment, including hydration and nutrition from a patient, it is first necessary to
determine whether such conduct is properly categorised as an act or an omis-
sion. In Tony Bland’s case the Law Lords decided that the withdrawal of artifi-
cial feeding by the removal of the naso-gastric tube constituted not an act but a
mere omission, in spite of protestations to the contrary by the Official Solicitor.
Bland’s feeding was administered via a naso-gastric tube delivering liquid food
77 Ibid, at 892.
78 (1918) 13 Crim App Rep 134.
79 The required mens rea for the offence of murder is the intention to kill or cause grievous bod-
ily harm.
directly into his stomach. Failure to introduce nutrients through the tube would
clearly constitute an omission that would ultimately result in death. However,
causing death by physically removing the tube so that food could no longer be
administered in this way could equally be described as a positive act resulting in
criminal liability. This apparently arbitrary distinction between act and omis-
sion would determine the extent of criminal liability flowing from this situation.
Helen Beynon considered these issues in depth and concluded that:
“perhaps the distinction in this context is that if the doctor’s course of conduct made
the patient’s condition worse, it should be described as an ‘act’; whereas if it failed to
make the patient’s condition any better, it should be described as an ‘omission’ ”.80
The distinction between making a patient’s condition worse and failing to make
it better is unhelpful when the ultimate consequence of either is death. In rela-
tion to this discussion of the withdrawal of nutrition and hydration perhaps it
is more germane to assess whether criminal culpability is appropriate in the cir-
cumstances. In which case the potential liability of those who withhold or with-
draw medical treatment will hinge upon the duty of care owed.
The Duty to Provide Medical Care
No criminal liability arises for omissions to act unless the relationship or the sit-
uation is one that gives rise to a legal duty of care. An obvious example of such
a situation exists where a duty to act is imposed upon an individual via con-
tractual obligations.81 However, a duty of care can also arise in the absence of a
contractual duty if an appropriate relationship exists between the people
involved. Family relationships, close domestic proximity, and situations where
there has been a voluntary assumption of a duty of care, as in R v. Instan,82 are
all examples.
The defendant in Instan was the plaintiff’s niece who lived in her aunt’s house
and consumed food provided by her aunt. The aunt was ill and eventually
became immobile and died when Instan failed to supply food. The court held
that the niece owed a duty to her aunt since she had voluntarily undertaken to
care for her and had received board and lodging in return. In R v. Stone and
Dobinson,83 Stone’s elderly sister who lived with the couple, refused nourish-
ment and medical care and died. It was held that the couple had voluntarily
assumed a legal duty to care for the sister. Their failure to discharge their duty
meant that the victim died as a result of their neglect and they were criminally
liable for her manslaughter. Stone and Dobinson were convicted despite the fact
80 H Benyon, “Doctors as Murderers” (1982) Crim LR 17.

81 R v. Pittwood (1902) 19 TLR 37.
82 [1893] 1 QB 450.
83 [1977] QB 354, [1977] 2 All ER 341.
that Stone was described as being of below average intelligence, almost blind
and partially deaf, while his mistress, Dobinson, was “inadequate”, calling into
question their capacity to assume such a responsibility in the first place.
A legal duty of care also arises by virtue of a person’s position in society and
her, or his, relationships with others. Those who hold public office or occupy a
position of trust as a consequence of their profession inevitably owe a duty of
care to those for whom they are responsible. Doctors, nurses and other health
care professionals fall within this category. Lord Nathan explains that
“the medical man’s duty arises then quite independently of any contract with his
patient. It is based simply upon the fact that the medical man has undertaken the care
and treatment of the patient”.84
Thus all doctors owe a duty of care to their patients and in each case the duty
arises by virtue of the fact that the doctor has undertaken to treat the patient
concerned. In the performance of that duty a doctor must act
“in accordance with a practice accepted at the time as proper by a reasonable body of
medical opinion even though other doctors adopt a different practice. In short, the law
imposes the duty of care; but the standard of care is a matter of medical judgement”.85
Essentially, under this Bolam principle, a doctor will not be in neglect of her
duty of care if it is demonstrable that other doctors would treat patients with the
same condition and prognosis in the same way.86 In Bland therefore the extent
of the doctor’s duty of care became the central issue in determining criminal
liability. Their Lordships were in complete agreement that a doctor is under no
duty to provide or continue treatment which is not in the patient’s best interests
and that Tony Bland’s persistent vegetative state was irreversible, rendering the
continuation of treatment “futile”. Accordingly, continuing to administer the
invasive and burdensome treatment would provide no benefit to the patient and
was contrary to his best interests. The doctor’s duty to provide sustenance was
therefore negated.87
In general clinicians have a duty to make treatment decisions according to an
assessment of the “best interests” of the patient, particularly if the patient lacks
the capacity to participate in the decision-making process. Bland,88 and subse-
quent cases involving patients in PVS89 concerned the withdrawal of hydration
84 Lord Nathan, Medical Negligence (Oxford, Oxford University Press, 1957) at 8.

85 Sidaway v. Bethlem Royal Hospital Governors [1985] 1 All ER 643, per Lord Scarman at 649,
reiterating the Bolam principle as articulated in Bolam v. Friern Hospital Management Committee
[1957] 2 All ER 118.
86 Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582.
87 Lord Mustill qualified this contention however by arguing that in fact this particular patient
had no interests by virtue of his medical condition.

88 [1993] 1 All ER 821.
89 Inter alia, Frenchay Healthcare NHS Trust v. S [1994] 2 All ER 403; Re G (Persistent
Vegetative State) [1995] 2 FLR 528; Swindon and Marlborough NHS Trust v. S [1995] 3 Med LR 84;
Re C (adult patient: restriction of publicity after death) [1996] 2 FLR 251; Re D (1997) 38 BMLR 1;
Re H (adult: incompetent) (1997) 38 BMLR 11.
and nutrition from incompetent patients; a course of action which is endorsed

by the courts as representing the individual patient’s “best interests”.90 These
judgements are necessarily reliant upon the efficacy of the medical evidence pre-
sented to the court by doctors. Yet it has been observed that “no doctor’s judge-
ment is infallible when it comes to predicting how close a patient is to death”.91
Indeed patients in PVS or similar conditions are usually not close to death and
there is still sometimes controversy over their exact diagnosis.92 In the light of
these factors, and concerns about the gravity of the outcome, the House of
Lords Select Committee on Medical Ethics93 endorsed the proposition in Bland
that all cases concerning the withdrawal of nutrition and hydration should be
referred to the courts so that doctors would not be taking life-limiting decisions
in isolation. This requirement has now been relaxed, following a number of
authoritative cases and the publication of detailed guidance by the British
Medical Association.94
For those seeking relief from the rigours of terminal disease the withdrawal
of nutrition and hydration or medication is not always the most appropriate or
dignified option. More often than not patients are receiving medication to con-
trol pain and other distressing symptoms alongside nutrition and hydration.
Simply discontinuing artificial hydration and nutrition, or neglecting to treat an
infection in these circumstances, could exacerbate existing pain and suffering.
In which case, the principle of double effect, whereby increasing doses of pain
relieving medication are administered until respiratory suppression occurs is in
practice more likely to provide a final solution.
THE PRINCIPLE OF DOUBLE EFFECT
The principle of double effect refers to the fact some conduct has simultaneous
intentional and unintentional consequences. In general terms, double effect sug-
gests that while it is wrong to perform a bad act for the sake of the good conse-
quences that may follow, it may be permissible to perform a good act even if
some bad consequences can be anticipated. A graphic illustration of the am-
biguities involved in the application of double effect is offered by Hart’s exam-
ple concerning the case of a man trapped inside a burning vehicle who implores
90
Other examples of court decisions based on similar reasoning include, In the Matter of a Ward
of Court [1995] 2 IRLM 401, and Law Hospital NHS Trust v. Lord Advocate [1996] 1 Scots Law
Times 869.
91
G M Craig, “On Withholding Nutrition and Hydration in the Terminally Ill: Has Palliative
Medicine Gone too Far?” (1994) 20 Journal of Medical Ethics 139–143, at 140.
92
In Re H (adult: incompetent) (1997) 38 BMLR, the condition of the patient concerned failed to
accord completely with the criteria of the Royal College of Physicians for the diagnosis of PVS.
Experts involved in the case were nonetheless convinced that her vegetative state was permanent.
93
Select Committee on Medical Ethics (1993–4) HL 21–II.
94
Practice Note(Persistent Vegetative State: Withdrawal of Treatment) [1996] 4 All ER 766,
BMA, BMA Guidelines on Treatment Decisions for Patients in Persistent Vegetative State (London,
BMA Publications, 1996).
a passer by to shoot him dead and relieve him of further pain and suffering.95
Clearly the bystander can foresee that if he does nothing the trapped man will
burn to death in agony. Yet if he acts as requested and shoots the man dead he
will be criminally liable for causing the man’s death. Death is inevitable; the
only choice is how it occurs. Which would be the good act, shooting the man or
allowing him to die in the fire? The criminal law dictates that deliberately
hastening the death of another is conduct that attracts criminal liability, regard-
less of the circumstances because:
“however gravely ill a man may be . . . he is entitled in our law to every hour . . . that
God has granted him. That hour or hours may be the most precious and most import-
ant hours of a man’s life”.96
An alternative for the passer-by might be to simply knock out the trapped man,
thereby sparing him from further conscious appreciation of his agony while
allowing the fire to inevitably kill him. This can be seen as analogous to the sit-
uation where a doctor uses strong pain-killing medication to relieve the pain
that is frequently symptomatic of terminal disease knowing that the patient will
inevitably die of the disease.
Terminal pain can usually be controlled by the administration of narcotic
drugs, but the effectiveness of the drugs gradually decreases as the body
becomes accustomed to them. Simultaneously, the disease process tends to lead
to ever more severe symptoms, requiring that the dosage is incrementally
increased to ensure adequate pain relief throughout a prolonged period of ter-
minal care. Alongside their beneficial, palliative effects, these drugs can produce
harmful side-effects which, in high doses can dull the responses, cause drowsi-
ness, and suppress appetite and respiration, ultimately causing death.
Controlling pain in terminal care thereby presents a clinical setting where
double effect may readily occur. Narcotics may be used both to relieve symp-
toms and avoid further suffering but might also hasten death, raising complex
legal and ethical issues. Medicine takes as its central aims the preservation of life
and the relief of suffering. In the context of double effect these objectives are
apparently contradictory since the relief of suffering may bring life to an end.
The tension between these principles, and the legitimacy of double effect, were
central to the notorious case of Dr Bodkin Adams.97
Dr Adams was tried for murder following the death of an eighty-four year old
patient in his care. The patient had named him as a beneficiary in her will and
there was evidence that large doses of heroine and morphine had been instru-
mental in her death. The drugs were prescribed and administered by Dr Adams
who claimed that they were required for symptomatic relief. At issue was the
right of the doctor to give such medication in circumstances where it might have
a detrimental effect on the patient’s longevity. Confronting the situation the
95
H L A Hart, “Intention and Punishment” (1967) The Oxford Review.
96
R v. Carr, The Sunday Times, 30 November 1986, per Mars-Jones J, at 1.
97
R v. Adams, The Times, 9 April 1957.
judgement stated that a doctor “is entitled to do all that is proper and necessary
to relieve pain and suffering, even if the measures he takes may incidentally
shorten human life”.98 Hence it does appear to be legally permissible for a doc-
tor to use whatever measures she deems appropriate to keep the patient com-
fortable and pain free, even if death may be hastened as an indirect or even
inevitable consequence. More contemporary cases indicate that the courts, and
public opinion, are prepared to allow doctors to exercise their considerable dis-
cretion in this area, though this approach may be at odds with criminal law
dicta.
The tension is revealed in the trial of Dr Cox, where Ognall J stated that:
“if a doctor genuinely believes that a certain course is beneficial to his patient, either
therapeutically or analgesically, then even though he recognises that that course car-
ries with it a risk to life, he is fully entitled nonetheless to pursue it”.99
By implication, while it would be bad to give a lethal dose of medication with

the intention of killing, it is permissible to perform the good act of administer-
ing high doses of analgesia to relieve suffering, even if the patient dies as a result.
From the perspective of the criminal law the crucial factor is the intention of the
actor, so that:
“if the acts done are intended to kill and do, in fact, kill, it does not matter if a life is
cut short by weeks or months, it is just as much murder as if it were cut short by
years”.100
Accordingly, the intention, or mens rea, of the practitioner of double effect must
be clearly identified before legal responsibility can be established. For murder
the mens rea is the intention unlawfully to kill or do serious bodily harm to
another person. Giving pain relieving medication with the sole intention of alle-
viating symptoms is beyond reproach. However the medication may also have
unintentional but foreseen consequences, that are problematic for criminal law
because the law of homicide extends the concept of intention to include fore-
sight of the consequences of one’s actions.101 If it is possible to extrapolate that
the drug was given because of its side effects as well as for its therapeutic value,
the subjective intention of the clinician is ambiguous and the action may be
unlawful. Where the use of double effect in terminal care is concerned, the
recognition, or foresight, that one consequence of administering high doses of
analgesics is death must surely always be there.
Fried has analysed the relevance of foresight in this context, and suggested
that it can be permissible to follow a course of action which will foreseeably lead
to a person’s death, so long as death is not the intended result.102 Criminal law
would certainly find this an acceptable argument since proof of intention is an
98 H Palmer, “Dr Adams’ Trial for Murder” (1957) Crim LR 365, at 375.
99 R v. Cox (1992) 12 BMLR 38, at 39.
100 H Palmer, “Dr Adams’ Trial for Murder” (1957) Crim LR 365, at 375.
101 R v. Nedrick [1986] 3 All ER 1.
102 C Fried, Right and Wrong (Harvard, Harvard University Press, 1978).
essential requirement in the successful prosecution of any homicide case. Where

death has occurred but was not the intended consequence, the position regard-
ing mens rea was clarified in R v. Nedrick which held that:
“When determining whether the defendant had the necessary intent, it may be helpful
for a jury to ask themselves two questions. (1) How probable was the consequence
which resulted from the defendant’s voluntary act? (2) Did he foresee that conse-
quence?
If he did not appreciate that death or serious harm was likely to result from his act, he
cannot have intended to bring it about. If he did, but thought that the risk to which he
was exposing the person killed was only slight, then it may be easy for the jury to con-
clude that he did not intend to bring about that result. On the other hand, if the jury
are satisfied that at the material time the defendant recognised that death or serious
harm would be virtually certain . . . to result from his voluntary act, then that is a fact
from which they may find it easy to infer that he intended to kill or do serious harm,
even though he may not have had any desire to achieve that result”.103
Norman echoes this opinion when he argues that if analgesics are administered
specifically to relieve pain, and simultaneously to hasten death, life has indeed
been intentionally terminated and that, if the doctor “says that she is not inten-
tionally ending the patient’s life, she is deceiving either herself or others”.104
This may well be true but to endorse that sentiment in the arena of terminal care
leaves doctors vulnerable to the rigours of the criminal law.
Yet if the control of symptomatic pain is the only available treatment, it is
essential that it be provided without reservation, even though death is a recog-
nised side effect. Failure to do so would be more harmful and therefore unethi-
cal. Ordinarily the assessment of whether a specific treatment will be beneficial
to a patient incorporates a judgement that it would be in the patient’s “best
interests”. For the terminal or incurable patient determining whether a course
of treatment is in the best interests of a particular patient can be problematic.
The patient may consider that her best interests lie in alleviating pain and suf-
fering by ending her life, while her professional and emotional carers favour
symptomatic relief. In this context “best interests” has been described as a
“pious fiction” which disguises the fact that the patient’s interests cannot be eas-
ily divorced from those of the carers,105 calling into question the intentions of
the clinician and raising doubts about the efficacy of a particular treatment.106
Should those doubts include concerns about the cause of a patient’s death
and lead to criminal proceedings a genuinely held belief that the actions taken
were in the patient’s best interests will not alone absolve the clinician from
responsibility.
The distinction between subjective intention and acting in the patients best
interests is, in many respects, analogous to that between intention and motive in
103 R v. Nedrick [1986] 3 All ER 1, at 3–4.
104 R Norman, Ethics, Killing and War (Cambridge, Cambridge University Press, 1995) at 87.
105 M Brazier, Medicine, Patients and the Law (London, Penguin, 1992) at 109.
106 Further analysis of the concept of best interest follows in ch. 3.
criminal law. Motive can be described as the reason why a person commits an
act which is intellectually distinct from whether the consequences of the act
were intended or foreseen. The attitude of the law to this distinction was
succinctly enunciated by Farquharson J in R v. Arthur when he advised the
jury that, “however noble his (the doctor’s) motives were . . . is irrelevant to the
question of your deciding what his intent was” (parenthesis added).107 A rather
different emphasis is offered by the case of R v. Steane108 however.
During the second World War, Steane was alleged to have assisted the
Germans by making radio broadcasts. He argued in his defence that his inten-
tion in so doing had been to protect his family from the threat of harm, rather
than to assist the enemy. Steane was convicted at first instance but appealed, and
on appeal it was noted that:
“While, no doubt, the motive of a man’s act and his intention in doing the act are in
law different things, it is none the less true that in many offences a specific intention is
a necessary ingredient and the jury have to be satisfied that a particular act was done
with that specific intent, although the natural consequences might, if nothing else was
proved, be said to show the intent for which it was done”.109
The judgement recognised that some actions may be “equally consistent with an
innocent intent as with a criminal intent” and accordingly it was held that
Steane did not possess the specific intention to assist the enemy as was required
for the offence with which he was charged.110
A different construction of these events suggests that in fact although Steane’s
intention was to help his family he did so by intentionally assisting the Germans.
Complying with the enemy’s demands was the only way he could save his fam-
ily therefore it was his intention so to do,111 even though he did not make the
broadcast with the purpose of assisting the enemy.112 Thus revealing that in
criminal law “the concept of ‘intention’ has a chameleon-like character and
changes its meaning according to its context”.113
Following the dicta in Nedrick, doctors who use double effect and are “virtu-
ally certain” that death will result have the mens rea of murder. Adopting the
reasoning employed in Steane would provide an acquittal due to the lack of “spe-
cific” intent and Mohan114 suggests that juries should regard criminal intention
within the common-sense and ordinary meaning of the word, as, “a decision to
107
The Times, 6 November 1981, [1986] Crim LR 383.
108
[1947] 1 All ER 813.
109 Ibid, at 820.
110 Today it is widely believed that Steane is been better categorised as a case of duress of cir-
cumstance, see C Clarkson and H Keating, Criminal Law: Text and Materials 4th edn. (London,
Sweet & Maxwell, 1998) at 147.
111 A Halpin, “Intended Consequences and Unintentional Fallacies” (1987) 7 Oxford Journal of
Legal Studies 104, G Williams, “Oblique Intention” [1987] CLJ 417.

112 A Duff, “Intentions Legal and Philosophical” (1989) 9 Oxford Journal of Legal Studies 76.
113 C Clarkson and H Keating, Criminal Law: Text and Materials 4th edn. (London, Sweet &
Maxwell, 1998) at 141.

114 [1976] 1 QB 1.
bring about a certain consequence”. Price argues that, because of the inconsis-
tency it promotes in the law, the doctrine of double effect is “the prime catalyst
for jurisprudential distortion”115 in the context of medical decisions at the end of
life. He asserts that “life-shortening pain relieving measures are justified but
intentional killings. . .” and suggests that a new defence justifying killing in these
circumstances would be a more appropriate way for the law to legitimate the
proper use of these techniques.116
In accord with Price’s argument, John Harris offers an ethical perspective
whereby he contends that the actual intention to produce a consequence is of
lesser significance than being responsible for causing that consequence.
“If you know that as a result of what you deliberately choose to do, the patient will
die, then that death is your responsibility. The question you must address is: ought this
patient to die in these circumstances? If they should, then it doesn’t matter whether
you intend it or not, if they shouldn’t you should neither intend it nor allow it to hap-
pen as a second effect”.117
Under Harris’s interpretation the most important aspect of a case like Dr

Arthurs118 is not whether he performed the act without intending for the patient
to die, but whether or not he was actually responsible for the action that caused
the death of the patient.119 The moral intent of the actor is as significant as the
consequences of the action and the circumstances within which the act is carried
out. It is then not just consequential harm that denotes criminal intent but also
the fact that the harm caused resulted from an evil intent.120
The differences between these legal and ethical responses to the use of double
effect may explain the tension in the relationship between those who wish doc-
tors to use it to end a life of suffering (patients and relatives), and those who
must perform it (doctors). Medication may be justifiably administered, even if it
has the side effect of causing death, so long as the intention of the doctor pre-
scribing and giving the drug is therapeutic and beneficial, but morally the prac-
tice is less easily justified. Distinctions must surely also be drawn between the
unintentional use of double effect which results in death, and its deliberate
application, which is a manipulation of its current legal status. Where a patient
specifically asks the doctor to prescribe drugs for the express purpose of causing
death and promoting dignity, the practice cannot be easily legitimated and may
be better defined as assisted suicide or even active euthanasia.
115 D Price, “Euthanasia, Pain Relief and Double Effect” (1997) 17 (2) Legal Studies 323, at 324.
116 Ibid, at 341–2.
117 Professor John Harris speaking during Hypotheticals: Kill or Cure? broadcast on BBC 2 tele-
vision, July 1994, transcript published by Broadcasting Support Services.

118 R v. Arthur (1993) 12 BMLR 1, The Times, 6 November 1981, 1.
119 Similar views were expressed by The British Humanist Society in evidence presented for the
Report of the Select Committee on Medical Ethics HL Paper 21-I (London, HMSO, 1994) at para 76.
120
See R A Duff, Intention, Agency and Criminal Law (London, Blackstone Press, 1990) at 112
for a fuller explanation.
PHYSICIAN ASSISTED SUICIDE
Physician assisted suicide usually involves a patient taking her own life with the
help of a doctor. Assistance is often necessary because the patient is practically
or contextually prevented from ending her own life. She may be physically inca-
pacitated, either because illness limits her mobility or because she is confined to
home or hospital. Access to the means to take her own life is then denied in cir-
cumstances where the doctor is often regarded as the person best able to assist.
A request to collaborate in suicide, usually by prescribing the appropriate drugs
and advising on their use, may be the result.
Assisted suicide is distinguishable from mercy killing because it is the patient
who acts to bring about her own death, rather than the doctor or other carer.
The person who provides a patient with the means to secure her own demise will
not therefore be guilty of homicide or unlawful killing. Neither will the patient,
should she survive, be liable for prosecution as it has not been an offence to
attempt to commit suicide since the enactment of the Suicide Act 1961.
However, in Britain a deliberate action performed with the intention of helping
another person to kill herself is a criminal offence, even if the act is unsuccess-
ful.121 Accordingly, even if the suicidant acts with clearly motivated self-
determination, anybody who intentionally provides the means to enable that
person to commit suicide will be culpable.
Despite this, a doctor suspected of assisting in a suicide will be liable to pros-
ecution only if sufficient clear and unequivocal evidence is available to establish
that an offence has been committed. Some of the difficulties of obtaining evi-
dence to this effect are demonstrated by Attorney-General v. Able122 where a
court declaration was sought that it was an offence for the Voluntary
Euthanasia Society to sell a booklet detailing various methods of committing
suicide. Evidence suggested that fifteen cases of suicide were associated with the
booklet, which detailed various ways and means of securing personal “deliver-
ance”. The Society claimed that, in the absence of legislation allowing euthana-
sia, it had no alternative but to provide its members with information, but in
order to convict the prosecution had to demonstrate that the booklet was dis-
tributed with the intention of assisting the particular recipient to commit suicide
using that information. Furthermore, the individual victim must have actually
committed suicide as a consequence of reading the booklet. A lack of evidence
of a clear causal link between the reading of the booklet and the suicides pre-
vented conviction in this instance. However, where evidence is available the
courts will reflect the gravity of the offence in the sentence.123
121
s.2 (1) Suicide Act 1961 makes it an offence to aid, abet, counsel or procure the suicide or
attempted suicide of another.
122
[1984] QB 795.
123
In R v. Beecham, reported in the Daily Telegraph, 18 February 1988, a father assisted his
daughter, who suffered with persistent pain from cancer and multiple sclerosis, to commit suicide
Nevertheless it has been argued that in some instances it can be morally

acceptable for a physician to assist a patient to commit suicide, as long as it is
done with an entirely compassionate motive.124 Some doctors have openly
assisted their patients to kill themselves and defended their actions by arguing
that this was a compassionate and caring response to the situation.125 Assisting
suicide will in these circumstances be regarded as a means with which to enable
a person to exercise her own choices and thereby maintain dignity until the
point of death. As such it is questionable why it should be a crime to help those
who wish to pursue this course of action but are prevented from so doing by the
consequences of disease when it is not a crime for people to take their own lives
if they can. Dr. Timothy Quill carefully considered these issues in respect of his
patient known as Diane:
“It was extraordinarily important to Diane to maintain control of herself and her own
dignity during the time remaining to her. When this was no longer possible, she clearly
wanted to die . . . When the time came, she wanted to take her life in the least painful
way possible. Knowing of her desire for independence and her decision to stay in con-
trol, I thought this request made perfect sense”.126
Diane was dying from incurable leukaemia and sought help in committing sui-
cide so that she could be certain that she would die when she decided the time
was right. In reviewing her case, Peter Singer supported Quill’s response stating
that “not all patients are fortunate enough to have a doctor like Timothy
Quill”.127 In a similar vein, Dr Jack Kevorkian, who is thought to have used a
home made suicide machine to help at least one hundred people to commit sui-
cide128 has been hailed as “a medical hero”:
“No one has demonstrated any discernible motives from him except that he believes
his work is right. Greed for money is absent because he has charged no fees. Greed for
fame, too, seems unlikely because he has shunned the media except to explain his posi-
tion. And no one has accused him of sadism in ending the lives and, according to him,
the suffering of his patients”.129
Dr Kevorkian’s conduct was unlawful and not universally admired however,

and he was repeatedly tried for assisting suicide. Until 1999 juries persistently
declined to convict him when he persuasively defended his actions as being
purely compassionate. Eventually though, following a debacle about a case
and was given a twelve month suspended sentence. The judge said that “offences of this nature must
in all circumstances be met with a term of imprisonment”. See J Horder, “Mercy Killings—Some
Reflections on Beecham’s Case”, (1988) 52 Journal of Criminal Law 309.
124 R Weir, “The Morality of Physician-Assisted Suicide” (1992) 20 Law Medicine and Health
Care 116.
125 Timothy E Quill, “Death and Dignity: A Case of Individualized Decision-Making” (1991) 324
(10) New England Journal of Medicine 691–4.

126 Ibid.
127 P Singer, Practical Ethics 2nd edn. (Cambridge, Cambridge University Press, 1993) at 198.
128 H Brody, “Kevorkian and Assisted Death in the United States” (1999) 318 BMJ 953.
129 J Roberts, C Kjellstrand, “Jack Kevorkian: A Medical Hero” (1996) 312 BMJ 1434.
where he claimed to have removed a kidney from one of his ‘victims’ and a tele-
vision screening of his involvement in the death of Thomas Youk, he was con-
victed of second degree murder. He was sentenced to serve between ten and
twenty five years in prison. The Dutch doctor Boudewijn Chabot has also been
widely criticised for his part in the assisted suicide of a patient who suffered only
from depression.130 Indeed he was criminally convicted but, despite the fact that
assisting suicide could at that time attract a three year prison sentence in the
Netherlands, no criminal sanction was imposed. Despite the public and profes-
sional misgivings about cases like these debate about the efficacy of assisted sui-
cide continues and has been intensified in recent years with the introduction of
permissive legislation in Australia and America.
In 1995 Australia’s Northern Territory enacted legislation permitting doctors
to provide assistance for terminally ill patients who wish to end their own lives.
The Rights of the Terminally Ill Act 1996 became effective on 1 July 1996. In
February 1996, prior to its introduction, it was amended to include stricter eli-
gibility requirements.131 The Federal Parliament overturned the legislation in
March 1997 but not before four patients took the opportunity to end their lives
with the aid of their doctors.
On 22 September 1996, Bob Dent became the first person in the world to die
by “legal” assisted suicide when he used specially designed computer software
to kill himself. The computer program, called “Final Exit”, was developed by
Dr Philip Nitschke to enable patients to end their own lives in a clinical and reli-
able manner. The process was designed to take a minimum of nine days and
involved the participation of up to six medical professionals including a GP and
a psychiatrist. The patient was required to respond to a series of twenty two
questions prompted by the computer program beginning with “does the medical
practitioner wish to give assistance?”. All questions were to be answered in the
affirmative for the “countdown” to continue. Once the final stages of the pro-
gram were reached a doctor would need to fit a cannula which would facilitate
the injection of lethal intravenous drugs. The final communication stated
baldly, “If you press ‘YES’, you will cause a lethal injection to be given within
30 seconds and you will die”. A positive response would result in the adminis-
tration of a lethal cocktail of drugs inducing unconsciousness and then death.
Predictably the Northern Territories legislation and the computer assisted
process received both support and condemnation from groups on either side
of the euthanasia lobby. A clear consensus emerged amongst people who
welcomed the opportunity to use the computer programme to deliver legal
physician assisted suicide however and many were prepared to travel to
130 Nederlands Juristenblad (1994) 26: 893–5, T Sheldon “Judges make Historic Ruling on
Euthanasia” (1994) 309 BMJ 7. H Biggs and K Diesfeld, “Assisted Suicide for People with
Depression: An Advocate’s Perspective”, (1995) 2 (1) Medical Law International 23.
131 Instead of requiring the agreement of one psychiatrist and one doctor a patient wishing to use
the Act would need the agreement of four doctors: a psychiatrist, the medical practitioner who
would assist the patient to die, a palliative care expert who must have explained the palliative
options, and an independent clinician with expertise in the patients terminal condition.
Northern Australia to take advantage of it.132 When the Act was overturned two
people, having obtained the necessary signatures, were waiting to use its provi-
sions. In view of their peculiar position it was proposed that a special amend-
ment could be passed to permit them to receive the help they sought in their own
time, even though such action was no longer legally permitted. The Federal
Parliament denied their request.
Similar legislative twists and turns have been experienced in Oregon, the only
American State to permit legal physician assisted suicide. Oregon’s Death with
Dignity Act 1994 was initially passed after a citizen initiated referendum.
Immediately after its introduction it became the subject of a legal challenge that
labelled it as potentially discriminatory and contrary to a number of constitu-
tional protections. In 1995 it was held to be in violation of the Equal Protection
Clause of the Fourteenth Amendment of the American Constitution and there-
fore unconstitutional.133 This ruling was subsequently challenged and re-
challenged until the Oregon legislature decided to hold a second referendum in
November 1997. An increased majority in favour meant that the Act became
law, allowing doctors to prescribe lethal medication on request to adult patients
who have the capacity to “make and communicate” health care decisions and
are terminally ill.134 The Act specifies the format of the written request, includ-
ing the requirement for at least two witnesses, one of whom must be entirely
independent of the patient. The patient’s own doctor is specifically excluded
from being a witness. The patient must request the drugs both orally, twice, and
in writing. At least fifteen days must elapse between the time of the first request
and the delivery of the prescription, which may also not occur until at least forty
eight hours after the written request is made.135
According to the Oregon Health Division, twenty nine prescriptions for
lethal medication were written for patients requesting death with dignity
between December 1997 and August 1999.136 The reasons given by the patients
concerned for selecting physician assisted suicide ranged from “non-existent
quality of life”, through “loss of control of bodily functions” resulting in loss of
autonomy, to being “determined to have control”.137 It seems therefore as
though the Oregon Death with Dignity Act was meeting the expressed needs of
people seeking to achieve dignity in dying by retaining control and using med-
ication deliberately prescribed for the purpose to end their own lives. However,
like the Australian Northern Territories legislation, opposition to the Act
132 C Zinn and S Potts, “Australians to log on for the Final Exit” The Observer 9 June 1996 at 23.
133 Lee v. Oregon 891 F Supp 1239 (D Or 1995).
134 The Act defines terminal disease as disease that has been medically confirmed as incurable and
irreversible and which reasonable medical judgement expects to produce death within six months.
135 For further detail on the scope and operation of the Oregon Death with Dignity Act 1994 see
M Otlowski, Voluntary Euthanasia and the Common Law (Clarendon, Oxford, 1997) particularly
368–374.
136 Oregon Health Division, “Oregon’s Death with Dignity Act Annual Report 1999” at
<http://www.ohd.hr.state.or.us/chs/pas/ar-dosc/htm>.
137 Ibid.
remains so strong that it was reported in November 1999 that the Death with
Dignity Act would be overturned by the Pain Relief Promotion Act passed by the
US House of Representatives,138 prohibiting the use of federally controlled sub-
stances, like morphine and similar narcotics, being prescribed “for the purpose
of causing death” and effectively outlawing physician assisted suicide in
Oregon.
So the legalisation of assisted suicide remains contentious even though a
patient’s request for assisted suicide may be wholly understandable in the rare
cases where orthodox medical techniques are unable to alleviate the anguish
imposed by intolerable illness.139 In the face of intolerable and ultimately un-
relievable suffering the act of enabling a patient to commit suicide can be read-
ily viewed as the supreme act of compassion. Particularly where a patient
articulates a desire to maintain autonomy over her living and dying which will
be denied by the inevitable progress of disease, and when conventional medical
therapy has been exhausted.140 But to assist suicide is clearly contrary to the
ethos of the medical profession and exposes the clinician to the potential of
criminal and professional sanctions. Furthermore, a doctor who decides not to
comply with a request for assistance may come to feel that her inability to pro-
vide such ultimate care is a failure of her moral responsibility as a clinician.
Respect for individual autonomy does not include the right to place another in
a position where they feel morally obliged to perform such an act. That would
surely be an affront to the practitioner’s dignity. And inevitably, those who are
prepared to comply with a request to assist suicide may be perceived as exploit-
ing the vulnerable141 and sliding down the slippery slope towards mercy killing.
MERCY KILLING
The term mercy killing describes the situation where a person (in practice this
will often be a medical professional) deliberately takes the life of another in
order to alleviate suffering. In Britain and all other Western jurisdictions, any-
body who intentionally terminates the life of another is morally and criminally
culpable, whether or not the “victim” complies. The law takes no account of
138
F Charatan, “New US Act Overturns Legality of Doctor Assisted Suicide in Oregon” (1999)
319 BMJ 1312.
139
The public and professional sympathy provoked by Annie Lindsell’s unreported and aborted
application for a Court declaration that her GP would not be the subject of criminal prosecution if
he complied with her request for potentially lethal medication is evidence of this point. See
E Wilkins, “Dying Woman Granted Wish for Dignified End” (1997) The Times, 29 October, 3.
140
New York internist Dr Timothy Quill received much public and media sympathy after pub-
lishing an account of how he came to assist his patient “Diane” to commit suicide in 1991.
141 Doctors Chabot and Kevorkian have been placed in this category by some commentators, see
for example, A D Ogilvie, S G Potts, “Assisted Suicide for Depression: the Slippery Slope in Action?”
(1994) 309 BMJ 492, H Biggs, K Diesfeld, “Assisted Suicide for People with Depression: an
Advocate’s Perspective” (1995) 2 (1) Medical Law International, 23, and, S Gutmann, “Dr
Kevorkian’s Woman Problem: Death and the Maiden” 24 June 1996, New Republic 1.
Mercy Killing 65
compassionate motives or of the status or profession of the individual con-

cerned, “it always treats mercy killing as murder”.142 As has been shown, the
doctrine of double effect means that if a patient dies as a result of the admin-
istration of medication which was vital for symptomatic relief, a prosecution for
homicide would probably be unsustainable. But, if the drug given has no thera-
peutic value, as in the case of Dr Cox,143 criminal responsibility is irrefutable
because, “if he injected her with potassium chloride with the primary purpose
of killing her, of hastening her death, he is guilty of the offence charged”.144
Accordingly, Dr Cox was tried and ultimately convicted of attempted murder.
The fact that his patient had been cremated before the criminal investigation
began, and that she was dying anyway, made it impossible to determine the
cause of her death with any certainty. Even though Dr Cox had recorded that he
had administered the lethal drug there was no evidence to establish whether the
drug or the disease had killed her.145 It has been suggested that had Cox given
his patient an overdose of narcotics, in the guise of relieving pain, he would
have safeguarded himself against criminal responsibility.146 Resting upon
the assumption that double effect can be used to shorten life this proposition is
correct, so long as the only motive is pain relief.147 However, Dr Cox made a
conscious decision to end his patient’s suffering and her life, at her request, and
acted upon it. Furthermore he took full responsibility for his actions by chroni-
cling his conduct in the patient’s medical records. As a consequence he was sub-
jected to the full force of the criminal law and the scrutiny of the doctor’s
professional body, the General Medical Council.
The case provoked an emotional response from those who were involved.
Many of the jury members wept openly when the guilty verdict was delivered.
And, after convicting Cox of attempted murder, Ognall J went on to temper
justice with mercy by imposing a sentence of twelve months imprisonment, sus-
pended for twelve months, apparently in recognition of the dilemma the doctor
had experienced. This benevolence was reflected in the subsequent disciplinary
hearing of the General Medical Council, which declined to remove his name
from the professional register, the usual sanction for a doctor convicted of a
serious crime. Instead it compelled Dr Cox to attend a training course on pain
management and then to work under supervision for a specified period. The
GMC’s formal judgement expressed sympathy for the predicament faced by
doctor and patient, echoing the perception of a significant section of public
opinion. The patient’s son, who gave supportive evidence on the doctor’s behalf
at the disciplinary hearing, revered the outcome as entirely just.
142
G Williams Textbook on Criminal Law 2nd edn. (London, Stevens, 1983) at 580.
143
R v. Cox (1992) 12 BMLR 38.
144
Ibid at 39, parenthesis added.
145
Compare with R v. White[1910] 2 KB 124.
146
C Wells, “Patients, Consent and Criminal Law” (1994) 1 Journal of Social Welfare and Family
Law 65, at 74.
147
P Devlin, Easing the Passing (London, Bodley Head, 1985).
Mason and McCall-Smith state that “there is an innate reluctance on the part
of the courts to convict the genuine ‘mercy-killer’ of an offence which carries a
mandatory sentence of life imprisonment”.148 The Cox case and several
subsequent cases that have seen lay people treated even more generously by the
criminal justice system seem to bear this out.
For example, in March 1996 care worker Rachel Heath appeared before
Winchester Crown Court charged with the murder of a seventy-one year old
woman who had been suffering from cancer and was in Rachel’s care. Her trial
was abandoned after Ognall J reviewed evidence of her compassionate motives
and declared that prosecution in such a case was not in the public interest. The
Crown Prosecution Service reconsidered its position and offered no evidence.149
In the High Court in Glasgow Paul Brady was charged with murder for killing
of his brother who suffered from Huntingdon’s disease and had repeatedly
appealed to his family to help him die.150 This charge was reduced to culpable
homicide because, as Lord McFadyen explained, the Court’s reduction of the
charge to culpable homicide allowed for the exercise of discretion in sentencing
and a custodial sentence was regarded as inappropriate.151 These cases are
illustrative of the gradually changing public and judicial attitude towards mercy
killing, which are typified by inconsistency between what the law says and the
way it is applied. Such cases and the legal uncertainty their outcomes generate
are, at least in part, responsible for the apparently increasing public support for
permissive legal reform.
CONCLUSIONS
Within the present legal system and the definitions it upholds, those who care
might be compelled to kill in order to relieve suffering. All decisions concerning
terminal medical care bring into sharp focus the divergence between the rights
of patients and the responsibilities of doctors, and the fine distinctions between
killing and caring are emphasised in this context. The demands now commonly
made by patients and their relatives for death with dignity and the constraints
imposed by the law diverge at the point where continuing medical care simply
prolongs the dying process but doctors cannot lawfully participate in actions
that curtail life. In practice it may not be possible to provide the kind of care
required by a terminal or incurably ill patient without straying into territory
policed by the criminal law, which means that doctors often have to deny
patients the choice they seek.
148 Mason and McCall-Smith, Law and Medical Ethics 5th edn. (London, Butterworths, 1999) at
416.
149 A Mollard, “Nurse Cleared of Mercy Killing” 28 March 1996, Daily Mail, 1, unreported else-
where.
150 HM Advocate v. Brady (1996) unreported.
151 See B Christie, “Man Walks Free in Scottish Euthanasia Case” (1996) 313 BMJ 961.
Conclusions 67
In recent years patients have been afforded greater involvement in treatment

decisions through the development of the concepts of consent and patient
autonomy. But, regardless of these advances, legal and ethical constraints pre-
vent doctors from complying with requests for treatment options that will delib-
erately hasten death. Autonomy may be retained until the very end of life but,
because the law dictates the circumstances in which life-limiting treatment deci-
sions are taken, choice is necessarily limited. Requests for terminal treatment
options, other than where this can be achieved by refusing consent to life pro-
longing interventions, are not presently legitimate. Yet, if a patient wants the
opportunity to end her own life at a time of her own choosing and is able to
make an autonomous decision, why should the law prevent her simply because
she is constrained by geography or physical disability? And if a person is able to
express a confirmed desire but physically unable to carry it out perhaps it would
be more dignified for her to be permitted to die quickly and painlessly, if that is
her choice, rather than enduring the protracted dying process associated with
treatment refusal?
Ethical medical practice encourages health care professionals to protect
people from experiencing intolerable distress and suffering against their wishes
but few doctors would seek the power to actively terminate a patient’s life. The
certainty and consistency demanded by patients and required by health care
professions is presently limited by the application of strict legal criteria to ter-
minal care decisions. Clinically assisted death is possible and legally permissible
in some forms, but, as this chapter demonstrates, its availability is largely deter-
mined by the medical circumstances relating to each specific patient and their
relationship with the criminal law.
Those who are able to exercise their autonomy by refusing to accept life
prolonging treatment may opt for death while those who are dependant upon
institutional or emotional carers are denied choice. Here justice is denied to the
patient who is prevented, by disease and the law, from exercising choice, as it
may be to the practitioner or carer who flouts the law in order to compassion-
ately comply with a person’s legitimate dying wishes. Greater use and recogni-
tion of advance directives would be valuable in the promotion of patients rights
and choices at the end of life. Their usefulness can only be fully assessed how-
ever, through the careful analysis of individual consent, legal capacity and
autonomy conducted in the following chapters where close attention is paid to
defining the precise nature of death with dignity in relation to the legal and eth-
ical responsibilities held by medical practitioners. In this environment care
must be taken to avoid criminalising those whose motives are benevolent,
particularly when they have simply responded to a request for mercy. This too
is undignified.
3
Consent to Treatment but Not to
Death
INTRODUCTION — WHY CONSENT ?
For the hypothetical patient described in chapter one, confined to her hospital
bed, clinging to life but with little prospect of recovery, the outlook is bleak.
Respect for autonomy and the law of consent theoretically allow her an absolute
right to give, or withhold, consent to medical treatment and may enable her to
influence the way in which events unfold, but whether or not she can depends
largely on the individual circumstances of her case. More particularly, it will
depend upon whether she has the legal capacity to participate in the medical
decision-making process, and the fortitude to ensure that her wishes are upheld.
In a case like this consent is central to understanding the relationship between
medicine, the law and the choice to die with dignity. Based on respect for indi-
vidual autonomy, the law of consent enables people to decide whether or not to
accept the medical treatments offered to them and thereby exert some control
over their clinical management. Alongside this function, consent can also legit-
imate many practices that would otherwise be regarded as crimes. It is also cen-
tral to the exercise of autonomy, choice and the maintenance of control over
medical decisions at the end of life, which are widely regarded as essential for
achieving dignity in dying. At present, the law of consent permits only limited
success in the pursuit of dignity in dying, largely because the major method by
which control can be exercised is where death results from withdrawing or with-
holding consent, and such a death may not be inherently dignified. Any propos-
als to revise law in favour of voluntary euthanasia would of course need to be
firmly grounded on mechanisms for ensuring that consent is freely given,
informed and valid within the context of an enduring decision to die. Before this
can be achieved a sound understanding of the law of consent and current restric-
tions on its application is required. This chapter will outline the background to
the law of consent and its application in respect of euthanasia and life-limiting
medical decisions in order to ascertain its value in the pursuit of dignity in dying.
The legal foundation of consent in relation to medical treatment is precisely
articulated in Cardozo J’s statement that “every human being of adult years
and sound mind has the right to determine what shall be done with his own
body”.1 It requires that no person should be touched by another without
1
Schloendorff v. Society of New York Hospital (1914) 105 NE 92, 93 (NY) per Cardozo J.
70 Consent to Treatment but Not to Death
express authorisation, which, when applied to the context of medical care,

means that no treatment should be given in the absence of valid consent.
Consent is required regardless of whether the contact occurs in everyday life or
during examination by a medical professional intent on diagnosis or treat-
ment,2 and generally ensures the protection of personal bodily integrity and
individual autonomy. As such there are various heads of liability that attach to
unauthorised touching, medical or otherwise, as well as various mechanisms
available to legitimate treatment without consent in appropriate circum-
stances. The ability of consent to safeguard a patients interests and wishes at
the end of life depends on the complex relationship between liabilities imposed
for treatment in the absence of valid consent, and the mechanisms through
which treatment without consent can be legitimated. These will form the sub-
stance of this chapter. Attention will be paid to the situations where consent is
specifically refused in the discussion of living wills in chapter five.
WITHOUT CONSENT
Liability arising from unauthorised contact may be civil or criminal. In civil law
the tort of battery derives from the right of an individual to autonomously dic-
tate what is done to her body and provides a remedy for a form of trespass that
results from intentionally causing offensive or harmful contact with another. As
such it:
“serves the dual purpose of affording protection to the individual not only against
bodily harm but also against any interference with his person which is offensive to a
reasonable sense of honour and dignity. The insult of being touched is traditionally
regarded as sufficient, even though the interference is only trivial and not attended
with actual physical harm”.3
Tortious battery requires no evidence of consequential physical harm, merely an

insult to bodily integrity,4 but successful cases of this kind are rare in the British
courts.5 Only a handful have been brought and most have failed on the basis
that there can be no battery once consent is given for some kind of physical con-
tact. Indeed one case went significantly further, suggesting that the touching
2
Schloendorff v. Society of New York Hospital (1914) 105 NE 92, 93 (NY), Sidaway v. Bethlem
Royal Hospital Governors [1985] 1 All ER 643 at 666, and Airedale NHS v. Bland [1993] 1 All ER
821, provide examples of prominent cases that include statements emphasising this right. It is also
endorsed in the Government policy document “A Guide to Consent for Examination and
Treatment” issued by Dept. of Health and the Welsh Office, and The Patient’s Charter.
3 Fleming, Law of Torts 8th edn. (Sydney, Law Book Company, 1992) at 24.
4 Allan v. Mount Sinai Hospital (1980) 109 DLR (3d) 536, a Canadian case in which a patient suc-
cessfully sued when she was injected in her left arm, after giving explicit instructions that she wished
to be injected only in the right arm. Consent was required to be specific to the treatment or proce-
dure involved.
5 See for example, Cull v. Royal Surrey County Hospital (1932) 1 BMJ 1195, and Hamilton v.
Birmingham RHB (1969) 2 BMJ 456.

Without Consent 71
must be hostile in order to impose tortious liability for battery.6 That judgment
has subsequently been discredited:
“In the old days it used to be said that, for a touching of another’s person to amount
to a battery, it had to be a touching ‘in anger’ . . . and it has recently been said that the
touching must be ‘hostile’ to have that effect (see Wilson v. Pringle). I respectfully
doubt whether that is correct”.7
The judgment in Wilson v. Pringle was indicative of the stringent efforts typ-
ically made by courts to avoid finding in favour of battery, particularly if the fac-
tual situation presents the possibility of liability in negligence where the
availability of damages is restricted to foreseeable harms.8 Successful claims for
battery allow damages to be recovered for all direct consequences of the tort
whether or not they were foreseeable, while the level of damages available in
negligence is more restricted because awards are limited to reasonably foresee-
able consequences. Moreover, successful actions in negligence also require the
plaintiff to demonstrate that the injury or harm for which damages are sought
was caused by the negligent action of the tortfeasor.
Away from the medical arena, harms “including any hurt or injury calculated
to interfere with the health or comfort of the prosecutor”9 resulting from phys-
ical contact can rarely be legitimated by the giving of consent and will usually
attract criminal sanction, but there are some notable exceptions. Ordinarily, “if
an act is unlawful in the sense of being in itself a criminal act, it is plain that it
cannot be rendered lawful simply because the person to whose detriment it is
done consents to it. No person can license another to commit a crime”.10 Yet in
some circumstances,
“activities carried on with consent by or on behalf of the injured person have been
accepted as lawful, not withstanding that they involve actual bodily harm or may
cause serious bodily harm”.11
Therefore, “ritual circumcision, tattooing, ear piercing and violent sports includ-
ing boxing are lawful activities”12 and it is accepted that when a person actively
seeks any of these types of action she does so in anticipation of the hurt that will
inevitably result and often welcomes its effect. These activities are condoned
because society respects freely given consent and tolerates the resulting harm.
Medical treatment provides numerous examples of foreseeable physical harms,
which would not usually be legitimated by consent. The “more than trifling”13
6 Wilson v. Pringle [1986] 2 All ER 440.

7 Re F (A Mental Patient: Sterilisation) [1990] 2 AC 1, [1989] 2 All ER 545 (HL), per Lord Goff.
8 See M Brazier, Medicine, Patients and the Law (London, Penguin, 1992) at 74 for further dis-
cussion.
9 R v. Donovan [1934] 2 KB 498, at 507, per Swift J.
10 A-G’s Reference (No.6 of 1980) [1981] 2 All ER 1057 at 1059.
11 R v. Brown [1993] 2 WLR 558, per Lord Templeman.
12 Ibid.
13 R v. Donovan [1934] 2 KB 498, at 507, per Swift J.
harms that might result from medical diagnosis and treatment, such as venepunc-
ture, incisions and strenuous palpation of parts of the body, would certainly fall
within the description of “any hurt or injury calculated to interfere with the health
or comfort of the prosecutor”,14 which would ordinarily attract criminal liability.
There is however a presumption that any physical contact occurring in the course
of medical treatment will be for the benefit of the recipient and is therefore, ulti-
mately in the public interest and can be sanctioned by valid consent.15 Hence even
though medical treatment may involve contact which in another context could
constitute bodily harm, it is not usually regarded as criminal behaviour.
Criminal responsibility for bodily contact causing non-fatal bodily harm will
usually be determined according to the Offences Against the Person Act 1861.
The offences range from assault and battery, through actual bodily harm to
grievous bodily harm and, if death results, murder or manslaughter charges may
be brought. In terms of general criminal liability the words assault and battery
are frequently used interchangeably although they are distinct statutory
offences with separate common law definitions.16 Assault does not require phys-
ical contact with the victim,17 while battery involves intentional or reckless
infliction of unlawful physical contact, both could apply to very many diagnost-
ic and therapeutic procedures. Clearly therefore, criminal liability can flow from
medical misconduct, albeit rarely. The types of physical contact involved in the
provision of medical care will frequently fall within the definitions contained in
the Offences Against the Person Act 1861,18 which cannot generally be legitim-
ated by reference to the victim’s consent. However, the 1861 Act does not pro-
vide that the commission of grievous bodily harm will automatically be
unlawful, implying that if grievous, or serious, bodily harm is caused uninten-
tionally or lawfully it will not be an offence. In R v. Hogan,19 Lawton J con-
strued “unlawfully” in section 18 as meaning “without lawful excuse”,20 hence
any harm resulting from proper medical treatment will be lawful as long as the
treatment is performed with valid consent. As such legitimate medical treatment
is considered an exception to the general rules on non-fatal offences so that any-
one performing it legitimately will not normally attract criminal sanction.21
14
R v. Donovan [1934] 2 KB 498, at 507, per Swift J.
15
It should be noted however that some medical procedures appear to provide little or no phys-
ical benefit to the individual patient concerned. The removal of organs for transplantation or the
extraction of bodily tissues or fluids for donation are obvious examples but, A-G’s Reference (No.
6 of 1980), [1981] QB 715, refers at 719D to the removal of kidneys from living donors for trans-
plantation as being done for “good reason” and therefore legitimate.
16
Taylor v. Little (1992) 95 Crim App R 28.
17
R v. Mansfield Justices (ex parte Sharkey) [1985] QB 613, [1985] 1 All ER 193, per Lord Lane.
18
Offences Against the Person Act 1861, s.18, s.20, and s.47, define the offences of causing griev-
ous bodily harm, inflicting grievous bodily harm and, assault occasioning actual bodily harm,
respectively.
19
(1973) 59 Crim App R 174.
20
Ibid at 176.
21
See R v. Brown [1993] 2 WLR 558, especially the dissenting judgments of Lord Mustill and
Lord Slynn. I Kennedy, A Grubb, also suggest that where medicine is practised in good faith there
Killing and Consent 73
Where the conduct concerned is not legitimate consent will be negated by the
nature of the harm involved or by issues which question the validity of the con-
sent, such as fraud, or mistaken identity. R v. Flattery,22 is a case in point. Here
the doctor made the false representation to his patient that sexual intercourse
was a legitimate method of medical examination and she permitted him to pro-
ceed. Consent was apparently given but was invalidated by the doctor’s misrep-
resentation of the facts. Dr Flattery was convicted of rape because he had sexual
intercourse with this patient without obtaining her valid consent. Medicine
was obviously not being practised in good faith and criminal prosecution was
appropriate.
KILLING AND CONSENT
Criminal prosecution can also be appropriate in circumstances where poor med-

ical practice results in breach of a professional duty leading to the death of a
patient. The patient will of course have consented to the treatment in the expec-
tation that it will be performed to an established and safe standard, which will
not be the case where negligence occurs. Although the mens rea for murder will
be absent, where the performance of a duty of care falls so far below an accepted
standard a manslaughter conviction can result from grossly negligent medical
practice.23 More generally, any deliberate action by one person which causes the
death of another is categorised as homicide, murder or manslaughter, under the
common law, even if the perpetrator is a medical professional, as in the notori-
ous case of Harold Shipman.
The relationship between homicide and euthanasia was discussed in chapter
one and is encapsulated in Lord Goff’s statement in Bland that:
“it is not lawful for a doctor to administer a drug to his patient to bring about his
death, even though that course is prompted by a humanitarian desire to end suffer-
ing”.24
So it is of no consequence that such an action was performed by a medical pro-

fessional, neither is it relevant that the act was performed with the consent of the
“victim”. But the insignificance of consent may be problematic here, particularly
because it can sometimes be difficult to determine exactly what kind of conduct
can be justified by giving valid consent. Why, for example, can consent legiti-
mate participation in dangerous contact sports like boxing where serious phys-
ical damage may be intentionally caused, when the same conduct outside a bar
is in reality no likelihood of criminal prosecution Medical Law: Text with Materials 2nd edn.
(London, Butterworths, 1994) at 90.
22 (1877) 2 QBD 410, R v. Williams [1923] 1 KB 340, provides a similar example where a music
teacher persuaded his student that sexual intercourse was an exercise to improve her breathing.
23 R v. Adomako [1994] Crim LR 757, [1993] 4 All ER 935.
24 Airedale NHS Trust v. Bland [1993] 1 All ER 812, per Lord Goff.
is considered criminal? Two consultation papers published by the Law

Commission,25 have specifically addressed the exceptions and perceived incon-
sistencies in the law of consent, one of which contained the following summary
of the law of consent:
“In short, the consent of the injured person does not normally provide a defence to
charges of assault occasioning actual bodily harm or more serious injury. On to this
basic principle the common law has grafted a number of exceptions to legitimise the
infliction of such injury in the course of properly conducted sports and games, lawful
correction, surgery, rough and undisciplined horseplay, dangerous exhibitions, male
circumcision, religious flagellation, tattooing and ear piercing”.26
There is no discernible logical reason why these practices should be exceptions,

other than that they represent behaviour upon which custom and practice have
had a normalising effect. Equally, the list itself is by no means comprehensive.
Other permanently body altering practices such as nipple and navel piercing are
today commonplace and many types of medical procedure other than surgery
fall within the definitions of the 1861 Act but do not ordinarily attract legal sanc-
tion. Every year thousands of patients validly consent to treatments, operations
and clinical trials knowing that they might suffer more harm than good, or even
die as a result. If all of these practices are accepted as legitimate because they are
consensual, commonplace and carry known and accepted risks, why should
euthanasia and assisted death remain excluded from the list if there is significant
public support for it? Certainly consent would have to be demonstrably freely
given and fully informed but mechanisms already exist to ensure these pro-
tections in other contexts, so why not here? Perhaps the answer lies firstly in
concerns about professional accountability that have already been mentioned,
and secondly in issues surrounding the adequacy of consent procedures?
VALID CONSENT , FREELY GIVEN ?
To avoid civil or criminal liability, and in order to maintain respect for patient
autonomy, medical professionals are charged with the duty to obtain valid con-
sent before commencing treatment. But how is a doctor’s duty to a patient
defined with respect to obtaining consent and the provision of medical services,
and how far does that duty extend?
Bolam v. Friern Hospital Management Committee27 is the seminal case defin-
ing negligence and the duty clinicians owe to their patients generally. Mr Bolam
was a voluntary patient in a mental hospital who suffered severe fractures during
25 Consent and Offences Against the Person, Law Commission Report, No. 134 (London,
HMSO, 1993), and Consent in the Criminal Law, Law Commission Report, No. 139 (London,
HMSO, 1995).
26 Consent in the Criminal Law, Law Commission Report, No. 139, (London, HMSO, 1995) at
para 1.11.
27 [1957] 1 WLR 582, [1957] 2 All ER 118.
Valid Consent, Freely Given 75
electro-convulsive therapy (ECT). He claimed that his doctor had been negligent
in the performance of his professional duty by failing to ensure that the therapy
was performed safely. In defining the nature of the doctor’s obligations in the
performance of his professional duty the judgment drew on ancient and inform-
ative dicta which decreed that:
“every person who enters a profession undertakes to bring to the exercise of it a reas-
onable degree of care and skill. He does not undertake . . . that he will perform a cure;
nor does he undertake to use the highest possible degree of skill”.28
Furthermore, Bolam determined that the standard of skill exercised by a

member of a professional body must simply be “the standard of the ordinary
skilled man exercising and professing to have that special skill”,29 and need not
be the highest possible level of expertise.
Whether or not there had been negligence depended on the precise extent of
the doctors duty, and this would be assessed by analysing the details of the case.
Factually it was established that two approaches to the administration of ECT
were commonly used at the time. One body of expert opinion regarded it as cru-
cial that muscle relaxing anaesthesia be used while the other considered that
additional risks might be imposed by so doing. The court held that doctors
would not be negligent so long as they acted “in accordance with the practice
accepted at the time as proper by a responsible body of medical men skilled in
that particular art”.30 If therefore there were opposing professional opinions
about what was the most correct procedure to adopt there would be no negli-
gence as long as the doctor adhered to one of those established practices. The
courts would not be concerned to challenge the scientific integrity of one
approach over another, it would be sufficient that a responsible body of profes-
sional opinion regarded it as a proper practice. Hence the standard weighs the
professional competence of doctors against the practices of their peer group,
rather than imposing a minimum standard of professional practice or providing
any expectations as to the level of care that should be incorporated into the per-
formance of a professional duty.
Negligence liability is of particular relevance to the law of consent because in
recent years, it has been recognised that it is germane not only to the physical
provision of diagnostic, surgical, or medical skills, but also to the provision of
information prior to obtaining consent. Valid and effective consent is founded on
the provision of sufficient information upon which patients can base decisions
about whether to accept or decline the treatments offered. Accordingly the law
of negligence has developed towards defining the concept of informed consent in
many jurisdictions. Cases discussed here31 question the validity of consent given
28
Lamphier v. Phipos (1838) 8 C & P 475, per Tindall CJ, at 478.
29
Bolam [1957] 2 All ER 118, at 121.
30
Ibid, per McNair J at 122.
31
R v. Flattery (1877) 2 QBD 410, R v. Adomako {1993] 4 All ER 935, and Sidaway v. Bethlem
Royal Hospital Governors [1985] 1 All ER 643.
by a patient who is not aware of the full implications of a particular course of

treatment. In relation to treatment decisions at the end of life, full and frank
exchanges of information between doctor and patient are essential. Patients need
to know complete details about their diagnosis and prognosis if they are to have
the opportunity to reflect upon the potential consequences of their decisions and
be enabled to make informed choices concerning treatment options at the end of
life. Nobody can take an informed decision to consent, to refuse treatment, or
construct a valid advance directive, without being adequately appraised of the
medical facts, and ethically, a competent patient should be given every opportu-
nity to fully reflect upon the consequences of giving or refusing consent.
Initially the concept of informed consent grew out of a perceived need to pro-
tect patients engaged in clinical research and was first mentioned in the
American case of Salgo v. Leland Stanford Junior University Board of
Trustees.32 Here it was held that a doctor has a duty to inform her patient of,
“. . . any facts that are necessary to form the basis of an intelligent consent . . .
to the proposed treatment”.33 In England the concept was first alluded to in
Chatterson v. Gerson34 and later became the focus of the action brought in
Sidaway v. Bethlem Royal Hospital Governors,35 where a patient alleged that
her surgeon was negligent for failing to inform her of the possible side effects of
an operation to relieve pressure on a nerve root in her neck.
Mrs Sidaway suffered partial paralysis and became severely disabled after the
surgery. The damage she suffered was caused by a known complication of the
operation, of which the patient claimed she had not been informed. She claimed
that she would not have consented to the surgery if she been aware of the poten-
tial risk of this particular outcome and sued in both battery and negligence.
Evidential problems arose during the case because Mrs Sidaway’s neuro-
surgeon died before the court action commenced. The case went ahead based on
the assumption that Mr Falconer (the neuro-surgeon) would have given general
warnings about the kind of damage that might occur, but not about the specific
damage that did result since the operation carried a less than one per cent risk
of causing this injury. In line with earlier judgments the claim in battery failed
at first instance, where it was affirmed that providing a patient is cognisant of
the nature of the surgery in general it will not constitute a battery. The negli-
gence claim also failed both at first instance and in the Court of Appeal, but a
further appeal was made to the House of Lords.
The Law Lords confirmed that the Bolam test is equally applicable to dia-
gnosis36 and treatment,37 and that it applies similarly to the provision of advice
and information. The case failed. However, the Bolam test was not endorsed
32 317 P 2d 170 (Cal, 1957).

33 Ibid at 172.
34 [1981] All ER 257.
35 [1985] 1 All ER 643.
36 Maynard v. West Midlands Health Authority [1984] 1 WLR 634.
37 Whitehouse v. Jordan [1981] 1 WLR 246.
without reservation. Lord Bridge, supported by Lord Keith, considered that

there are some situations where the courts might intervene even though
accepted medical practice suggests there is no necessity to disclose specific
information. He remarked:
“I am of the opinion that the judge might in certain circumstances come to the con-
clusion that disclosure of a particular risk was so obviously necessary to an informed
choice on the part of the patient that no reasonably prudent medical man would fail
to make it”.38
But his comments were somewhat diluted in the light of his earlier statement that:
“when questioned specifically by a patient of apparently sound mind about risks
involved in a particular treatment proposed, the doctor’s duty must, in my opinion, be
to answer both truthfully and as fully as the questioner requires”.39
The way was left open for the exercise of clinical judgement in determining
exactly how detailed an answer the patient needs. Lord Diplock’s judgment
reflects these sentiments in its support for the use of the Bolam test:
“To decide what risks of the existence of which a patient should be voluntarily warned
. . . is as much an exercise of professional skill and judgement as any other part of the doc-
tor’s comprehensive duty of care to the individual patient, and expert medical evidence on
this matter should be treated in just the same way. The Bolam test should be applied”.40
Questions about the adequacy of consent procedures, coupled with concerns
about professional accountability are unavoidable when faced with the endorse-
ment of such wide clinical discretion in an area as fundamental as the provision
of information prior to gaining patients consent to treatment. Allowing too
much latitude in the exercise of clinical discretion can enhance the existing
paternalism in many medical relationships, and may be destructive of patient
autonomy.41 It will be especially problematic where potentially life-limiting
decisions are to be made by doctors and patients. Lord Bridge’s comments
above42 recognised the importance of enabling patients to make informed
choices and opened up the potential to develop the concept of informed consent,
but the courts have been slow to respond. In Gold v. Haringey Health
Authority,43 for example, it was argued that, on the facts of the case, the Bolam
test did not apply to the provision of contraceptive advice. Mrs Gold had under-
gone a sterilisation operation and subsequently become pregnant. She had not
been warned that the operation could fail, that the consequences of failure could
be that she would become pregnant, or that there were alternative forms of
contraception available, namely that her husband could have undergone a
38 [1985] 1 All ER 643 per Lord Bridge at 663.

39 Ibid at 662.
40 [1985] 1 All ER 643 per Lord Diplock at 658.
41 See ch. 4 for a detailed discussion on medical paternalism, autonomy and the validity of con-
sent.
42 [1985] 1 All ER 643 per Lord Bridge at 663.
43
The Times 17 June 1986.
vasectomy. At first instance it was held that the Bolam test did not apply to
information given in non-therapeutic medical situations such as the provision of
contraceptive advice. This meant that the surgeon was found to be negligent
even though there was evidence that a significant body of doctors, one witness
said fifty per cent, would also not have issued a warning. But, in the Court of
Appeal, Lord Lloyd held that the Bolam test is equally applicable to this kind of
clinical environment as any other so the doctor had not been negligent.44
The patient in Blyth v. Bloomsbury Area Health Authority45 was a qualified
nurse. She sued the health authority in negligence, arguing that it was in breach
of a duty owed to her by failing to inform her of all the known potential conse-
quences of the treatment she received. Ms Blyth had asked numerous detailed
questions concerning potential side effects before she was injected with the con-
traceptive Depo-Provera. After beginning the treatment she experienced pro-
longed vaginal bleeding, a potential side effect of which she had not been
informed and was unprepared. At first instance the trial judge found in her
favour, but in the Court of Appeal it was held that the doctor had not been neg-
ligent because the amount of information given to a patient is a matter of clin-
ical judgement, even where the patient specifically requests it. Any suggestion
that Sidaway implied that patients should be given all available information on
a particular form of treatment was rejected46 and the Bolam test was endorsed
as being generally applicable to the provision of information, even if the patient
makes specific enquiries.47 This is perhaps the kind of reasoning that has led to
recent debacles like that associated with the unauthorised removal and retention
of organs from dead babies at Alder Hay Hospital.48
The judgment in Blyth was just one in a line of similar decisions that received
criticism from both the medical fraternity and academic lawyers.49
Subsequently the case of Smith v. Tunbridge Wells Health Authority50 has
demonstrated that a more patient centred approach can be adopted in cases
involving negligence, consent and the provision of full information. Here a
twenty-eight year old married man had undergone a surgical operation intended
to correct a rectal prolapse. Bladder dysfunction and impotence were recognised
complications of this particular operation and Mr Smith was afflicted with both
after his operation. He brought an action in negligence against his surgeon,
claiming that no warning of the risks inherent in the operation had been issued
and that had he known of them he would not have consented to the procedure.
44 Gold v. Haringey Health Authority [1987] 3 WLR 649, at 656–7.

45 [1993] 4 Med LR 151.
46 Ibid, per Neill LJ.
47 [1993] 4 Med LR 151, per Neill LJ and Kerr LJ.
48 The Royal Liverpool Children’s Inquiry Report: House of Commons Papers 2000–01 12–II
(London: HMSO, 2001)

49 See for example, I Kennedy, “The Patient on the Clapham Omnibus” in Treat Me Right:
Essays in Medical Law and Ethics (Oxford, Clarendon, 1991) 210–212, and S McLean, A Patient’s
Right to Know (Aldershot, Dartmouth, 1989).
50 [1994] 5 Med LR 334.
Evidence was presented that although the side effects Mr Smith suffered were
recognised they were not mentioned in the leading text book on this type of
surgery at the time. Professor Golligher, the author of the book, gave evidence
to this effect but also claimed that he considered the non-inclusion to be an over-
sight which may have misled many surgeons. The surgeon, Mr Cook, himself
said in evidence that he could not remember warning the patient of these par-
ticular risks, and had not noted that he did so, but he considered that he would
have been in breach of his duty to the patient had he failed to.
Morland J accepted that a young man like Mr Smith was unlikely to have
consented to the operation without further enquiry or information about alter-
native treatments, had he been aware of the risk of impotence, and held:
“In my judgement Mr Cook, in stating that he considered that he owed a duty to warn,
was reflecting not only the generally accepted standard practice, but also the only reas-
onable and responsible standard of care to be expected from a consultant in Mr
Cook’s position faced with the plaintiff’s situation. On this issue the plaintiff succeeds
applying the Bolam test as elucidated in Sidaway”.51
This judgment, in combination with others52 goes some way towards demon-
strating that the law has begun to question the traditional and paternalistic atti-
tudes to medical negligence reflected in Bolam and Sidaway. Yet the impact of
the decision in Smith may, as a first instance judgment, be limited if its relevance
is confined to its particular facts.
Nevertheless, there is evidence of growing concern amongst health care pro-
fessionals that patients should be supplied with full information. The wording
of the Department of Health’s standard consent form for routine surgery,
investigation, or treatment now emphasises the patient’s right to know and to
demand explanations. The trend towards greater openness by practitioners and
the need for improved patient awareness is gradually becoming established, but
still needs firmer foundations. Ultimately perhaps this will amount to a body of
responsible medical opinion that considers the provision of full information a
necessity. The judgment in Smith certainly appears to represent a departure
from decisions in previous English cases while reflecting decisions reached in
many other jurisdictions. Some commentators have therefore suggested that a
move towards a fully evolved legal concept of informed consent is inevitable,53
but it seems to be a long time coming.
The present debate concerning voluntary euthanasia end of life decision-
making requires consent issues to be approached with certainty and consistency.
Patients who might wish to select life-limiting treatment options within the cur-
rent legal environment need to be in possession of all the facts and know that
51 Ibid, at 338.
52 Bolitho v. City and Hackney Health Authority [1998] AC 232, [1997] 4 All ER 771.
53 See Rogers v. Whitaker (1992) 67 ALJR 47 (High Court of Australia), K Tickner, “Rogers v.
Whitaker—Giving Patients a Meaningful Choice” (1995) 15 (1) Oxford Journal of Legal Studies 110
at 118, and C Newdick, Who Should We Treat? Law, Patients and Resources in the NHS (Oxford,
Oxford University Press, 1995) at 297.
they have received good advice so that they can participate fully in the decision-
making process. It may be difficult for lay people, especially once they have
become patients,54 to comprehend the full ramifications of a complex medical
situation, but thoughtful and sensitive explanations should enhance autonomy
and promote understanding. Information must be provided, not only about the
therapeutic options available but also about the implications for themselves and
their carers if dignity in dying is to be achieved.
However, some patients are unable to influence decisions about their medical
care even if they could have been given full information. These are the groups
who are excluded from Cardozo Js description of those who have a right to
determine what shall be done with their bodies, notably, children,55 who are not
of “adult years”, and those who are not “of sound mind” and lack full mental
capacity. Despite their inability to consent in the usual way, various legal mech-
anisms exist to legitimate the provision of treatment, giving rise to situations
that are influential in the discussion of end of life decision-making, hence it is
germane to briefly consider them here.
OLD ENOUGH TO CONSENT
Generally children can be regarded as equivalent to incompetent adults because

they lack the capacity to make their own treatment decisions. The practical sit-
uation is rather more complex than that however, since a parent will usually
have parental responsibility by virtue of their relationship with the child.56
Where a child has no parent or legal guardian who can authorise treatment,
Wardship proceedings can be instituted to enable the courts to decide. Similarly,
in situations where the efficacy of a proposed treatment is questionable or is not
demonstrably in the child’s best interests, the Family Courts are empowered to
give or withhold consent. In the alternative, the court possesses the constitu-
tional prerogative of parens patriae which provides it with the authority to con-
sent to treatment on the child’s behalf.
Under The Family Law Reform Act 1969,57 a person reaches maturity for the
purposes of consent to medical treatment at the age of sixteen. However, the
ability to give legally valid consent to medical treatment is not determined solely
according to chronological age, it also depends on an individual’s demonstration
54 Ch. 4 explores further the detrimental effects to autonomy that can result when a person is
redefined as a patient.
55 Ordinarily minors, below the age of majority, which in Britain is 18 years of age, have limited
legal rights and are deemed not competent to consent to medical treatment because they are not suf-
ficiently mature. However, under the Family Law Reform Act 1969, s.8 (1), (2), and (3), a person
between the ages of 16 and 18 years may consent to medical treatment.
56 Exceptionally, the natural father of a child who was not married to the mother at the time of
birth will not automatically acquire parental responsibility. Under s.4 of The Childrens Act 1989
such a father may obtain parental responsibility by agreement with the mother or by court order.
57 s.8 (1), (2), and (3).
Old Enough to Consent 81
that she has the capacity to decide for herself. A child below sixteen years of age
may be regarded as competent to consent to treatment if she has attained a level
of maturity which her doctor considers enables her to make an informed deci-
sion. In this situation the minor may be described as Gillick competent, a term
derived from the name of the case brought by Mrs Victoria Gillick that was ulti-
mately decided in the House of Lords in 1985.58
The case turned upon the legal status of advice and guidance issued to doc-
tors by the Department of Health and Social Security (DHSS) in 1974 and
revised in 1980. Following the collation of statistics revealing a high incidence of
teenage pregnancy and abortion a need was identified for contraceptive services
to be made more accessible to this group. The DHSS issued circulars to doctors
concerning the provision of contraceptive advice to teenagers, including those
under sixteen, explaining that not only could contraception be provided but also
that confidentiality should be respected if the girl preferred not to inform her
parents.59 Mrs. Gillick, a devout Catholic and, at that time, mother of four
daughters under sixteen, found the advice unacceptable and disputed the
assumption that medical treatment of children under sixteen could be lawful in
the absence of parental consent. She also argued that, since it is a criminal
offence for a man to have sexual intercourse with a girl below the age of con-
sent, providing contraceptive advice to children of this age would signify that a
crime was being condoned.
Rejecting her argument, the House of Lords held that the guidance to doctors
was not unlawful. Children under sixteen can lawfully receive medical advice
and treatment in the absence of parental consent, provided that the particular
minor has achieved a degree of maturity that enables her to comprehend fully
the implications of the treatment being proposed. The judgment recognised that
people mature at different rates so that flexibility in the application of legal prin-
ciples is essential to uphold the autonomy of those who attain maturity at a
younger age. In Lord Scarman’s words:
“if the law should impose upon the process of growing up fixed limits where nature
knew only a continuous process, the price would be artificiality and a lack of realism
in an area where the law must be sensitive to human development and social
change”.60
Yet the principles upheld in Gillick are not absolute and have been seriously
undermined in subsequent cases by both medical and legal paternalism in ways
58 Gillick v. West Norfolk and Wisbech AHA [1985] 3 All ER 402, HL.
59 s.8 (3) of The Family Law Reform Act 1969 makes provision for situations such as this, stat-
ing as it does that “Nothing in this section shall be construed as making ineffective any consent
which would have been effective if this section had not been enacted”. This is a reference to the
assumption which had existed before the Act that individuals between 16 and 18 could consent in
particular circumstances, and was considered pertinent to those under 16 once the legal position
regarding the over 16s was clarified.
60 Gillick v. West Norfolk and Wisbech AHA [1985] 3 All ER 402, HL.
which may also have implications for the ability of adults of questionable com-
petence to refuse consent to treatment.61
Re W,62 involving a girl of sixteen who was transferred to a psychiatric hos-
pital against her will to undergo treatment for anorexia nervosa, provides a
graphic demonstration. Here the court relied on the interpretation of Gillick put
forward in Re R63 as deciding that, while minors under sixteen could consent to
treatment, their refusal could be overridden by others with the authority to con-
sent for them. Re W extended that principle further by including minors over the
age of sixteen, even though their rights to give or withhold consent had been
apparently firmly established by the Family Law Reform Act 1969.64 The judg-
ments turn upon the minor’s capacity to consent and the distinction between
giving and withholding consent, especially when death will be the likely result
of treatment refusal. Further analysis of this type of judicial reasoning will be
included in chapter five’s discussions of living wills and anticipatory decisions,
especially in relation to adults who lack capacity and cannot decide for them-
selves.
DECIDING FOR OTHERS
A legal presumption exists that every adult has the capacity to consent, unless
the contrary has been demonstrated. Once attaining adult status, a patient is the
only person who can give legally valid consent for a medical procedure on her-
self.
That some patients lack capacity is abundantly clear, few doubts arise in rela-
tion to those who are very young or unconscious.65 For others though the assess-
ment of capacity is more ambiguous. A person may have sustained an injury that
has interfered with her intellectual ability to process and respond to inform-
ation, such an injury may be traumatic or the result of degenerative disease. The
ability to engage in competent decision-making may be disrupted by temporary,
permanent, or fluctuating mental illness, or by emotional upset. Diagnosis of
incapacity is further complicated by the fact that, regardless of cause, compe-
tence is specific to the particular decision and relative to the context within
which the decision must be made. In other words a person may be competent to
make one decision but not another, depending on the type and gravity of the
decision and on her general understanding of its impact in the circumstances. To
give an extreme example, a person who refuses a necessary life-saving treatment
only because she wants to avoid the food on the supper menu the next day is
61 J Murphy, “W(h)ither Adolescent Autonomy?” (1992) Journal of Social Welfare and Family
Law 529.
62 [1992] 4 All ER 627.
63 (1992) Fam 11.
64 s.8.
65 Clearly however medical decision-making in the context of permanent unconsciousness due to
trauma or disease is distinguishable from that provoked by temporary anaesthesia.

likely to be considered incompetent because she lacks insight of the full impli-
cations of the decision. Not only will she avoid the dreaded meal but she will
also be dead. By contrast, a person who has considered all of her treatment
options and arrived at a decision that it would be more dignified for her to die,
rather than live a totally dependent existence, may be making a legally valid
choice, as long as she is competent.
Two issues arise. How is capacity assessed and, once incapacity is deter-
mined, how can treatment decisions be taken? Ultimately the assessment of an
individual’s capacity is a legal question for a court to decide,66 but in practice
the assessment of an adult’s capacity to give or withhold consent is more often
a matter of clinical judgement.67 So when an incompetent adult requires med-
ical treatment for which she cannot consent clinicians appear to face an uncom-
fortable choice; either administer the treatment without consent, or don’t give
the treatment. In circumstances where the patient is mentally ill and requires
treatment for that specific illness special provision is made under the Mental
Health Act 1983. However, these measures are of little application to this ana-
lysis of the role of consent to treatment in respect of euthanasia and death with
dignity so only scant reference will be made to them. Otherwise treatment with-
out consent is usually legitimated in ways that depend upon the circumstances
in which the need for treatment arises. Medical emergency, where doctors are
permitted to act out of necessity, is one example while if treatment is clinically
indicated but no emergency or urgency exists, best interests criteria will be
employed. Each of these instances is particularly relevant to end of life decision-
making where non-treatment decisions resulting in death are taken for people
who cannot participate in the decision-making process. Underpinning such
decisions are principles developed to enable treatment to be provided for those
who cannot consent so the methods by which this is achieved form an important
element of this discussion.
Necessity and Emergency
The popular perception of an emergency medical situation is one where a per-

son is admitted to a hospital accident and emergency department in a condition
that prevents communication with the medical staff. In order to legitimate treat-
ment in the absence of consent the situation must be one of authentic emer-
gency, where “. . . it would be unreasonable, as opposed to merely inconvenient,
to postpone until consent could be sought”.68 The emergency itself does not
66
Richmond v. Richmond (1914) 111 LT 273. Re MB (an adult: medical treatment) [1997] 8 Med
LR 217, 38 BMLR 175, gives the definitive legal assessment of incapacity.
67
The BMA with the Law Society, Assessment of Mental Capacity: Guidance for Doctors and
Lawyers (London, BMA, 1995) at 66.
68
P D G Skegg “Justifications for Medical Procedure Performed without Consent” (1974) 90
LQR 512, also the Canadian case of Murray v. McMurchy [1949] 2 DLR 442, and Devi v. West
Midlands Regional Health Authority [1981] (CA Transcript 491) both reiterate this point.
sanction treatment in the absence of consent, rather it is the urgency of the need
for treatment that is decisive. However, the emergency is relevant because, “it
gives rise to a necessity to act in the interests of the assisted person, without first
obtaining his consent”.69 Failure to treat in these circumstances, with poten-
tially deleterious consequences, is contrary to the ethic of medicine,70 and may
constitute a breach of a professional obligation.
Accordingly, wherever a patient is in urgent need of medical treatment, the
attendant doctors usually have little hesitation in defining the situation as one of
clinical emergency and the law is sympathetic to the notion that an emergency
obviates the need to obtain consent.
“if a patient is unconscious and therefore unable to give or to withhold his consent,
emergency medical treatment, which may include surgical procedures, can lawfully be
carried out . . . The treatment which can be so given, however, is, within broad limits,
confined to such treatment as is necessary to meet the emergency and such as needs to
be carried out at once”.71
Administering treatment without consent, even in a genuine emergency,

amounts to invading a person’s bodily integrity in neglect of her autonomy. It is
therefore something that should always be approached with caution, particu-
larly in clinical situations that do not fit easily into this understanding of an
emergency but whose circumstances nevertheless apparently suggest that doc-
tors have a duty to act. These situations are both rare, controversial and often
subject to reinterpretation in the light of changing historical or cultural mores,
as Leigh v. Gladstone,72 illustrates.
Marie Leigh was a member of the Suffragette movement who went on hunger
strike while detained in prison. She brought an action for damages against
Gladstone et al claiming that the forcible feeding she had been subjected to
amounted to an assault because it had been against her wishes. It was argued
that only minimal force was used, and that the action was necessary to save the
woman’s life. In a judgment that appears to disregard the principle that a per-
son’s bodily integrity should not be violated without express or implied consent,
the court held that, “. . . it was the duty . . . of the officials to preserve the lives
and health of the prisoners, who were in the custody of the Crown”.73 Such an
approach would not be advocated in the UK today where, on the basis of pre-
sent day attitudes towards autonomy and self-determination, this judgment is
no longer regarded as good law and it is now accepted that the existence of a
duty of care does not allow the imposition of treatment upon a non-compliant
competent person simply to maintain good health. As long as the individual
69
Re F (A Mental Patient: Sterilisation) [1990] 2 AC 1, [1989] 2 All ER 545 (HL), per Lord Goff.
70
See C Wells, “Patients, Consent, and Criminal Law” (1994) 1 Journal of Social, Welfare and
Family Law 65 at 69, for a graphic illustration of the dilemma.
71
72
(1909) 26 TLR 139 (King’s Bench Division).
73
Leigh v. Gladstone (1909) 26 TLR 139 (Kings Bench Division) per Lord Alverstone CJ.
concerned is mentally competent,74 the principle applies even if that person is in

the custody of the Crown.75 Conversely, a number of criminal cases have been
tried on the basis of a failure to act where a duty of care exists, even though the
alleged victim has declined to consent.76
In R v. Stone and Dobinson,77 a case of manslaughter, the defendants were
held to have voluntarily assumed a duty to care for the victim, by providing sus-
tenance and assisting her with personal hygiene while she lived with them. The
deceased was ill but declined medical aid and refused food and drink. She was
ultimately found dead in her bed. Despite Stone’s below average mental capa-
city, it was held that he and Dobinson, his common law wife, were aware of the
victim’s deteriorating condition and carried out ineffectual attempts to secure
medical treatment for her. They had thereby neglected their duty to care for her
and so were responsible for her death.
Like Leigh v. Gladstone, Stone assumes that the presence of a duty negates the
need for individual consent. It offers no recognition of the fact that, even if the
ineffectual carers had found a doctor to attend, the victim was at liberty to
refuse treatment, and that she had already insisted that she was hostile to med-
ical intervention. The couple may have been in dereliction of their duty because
they failed to summon a doctor, but it should also be noted that a competent
adult has an absolute right to refuse to be treated or diagnosed by a doctor.
Should their failure have generated liability for homicide in the absence of evi-
dence that the sister would have then consented to any treatment offered, or that
it would have been legally permissible for treatment to be imposed without con-
sent? Perhaps the court was implying here a principle enunciated in R v. Smith,78
namely that, “if she appeared desperately ill then whatever she may say it may
be right to override” her wishes.79 However, this statement is clearly contrary to
the obligation to respect individual autonomy and not to breach another’s phys-
ical integrity without their consent. At issue in these cases is whether the indi-
viduals concerned were competent to decide for themselves? If they were,
medical intervention cannot be justified in the absence of consent, and if they
were not on what basis could treatment be legitimately administered? The
74 In R v. Ashworth Hospital Authority ex parte Brady, [2000] Lloyd’s Med Rep 355, [2000] 8
Med LR 251, Mr Justice Kay held that Moors murderer Ian Brady should not be allowed to starve
himself to death and under s. 63 of the Mental Health Act force feeding constituted treatment of his
mental disorder.
75
A-G of British Columbia v. Astaforoff [1983] 6 WWR 322, and, in the British Columbia Court
of Appeal, [1984] 4 WWR 385, expressly rejected the notion that the state had a duty to force feed
an individual on hunger strike to prevent her suicide. Similarly, in Airedale NHS Trust v. Bland
[1993] 1 All ER 821, at 861, Lord Keith, while discussing the principle of the sanctity of life, con-
firmed that “it does not authorise the forcible feeding of prisoners on hunger strike.” See also Home
Secretary v. Robb [1995] FLR 412, which upholds this position.
76
R v. Stone [1977] QB 354, R v. Wilkinson, The Times, 19 April 1978, 5, and R v. Smith [1979]
Crim LR 251, are the most notable.
77
[1977] QB 354, [1977] 2 All ER 341, (CA).
78
[1979] Crim LR 251.
79
Ibid, at 252–3.
answers are highly significant for anybody considering avoiding medical inter-
vention in a quest for death with dignity.
While the law supports doctors who treat incapacitated patients without con-
sent in emergencies, in practice consent is often sought from relatives or next-
of-kin. This custom has no legal authority. Its only significance is as a method
of determining the supposed wishes of the patient regarding the unfolding med-
ical situation in the same way that chapter two described instances where the
views of relatives about proposed treatment options might be sought but could
not be considered decisive. Medical treatment performed without consent may
be more easily legitimated in any subsequent legal dispute if relatives have been
consulted, but only because the opinions of relatives can provide evidence as to
the presumed wishes of the patient, not because proxy consent has been
obtained from the relatives.80
Despite this, some judges have erroneously assumed that valid consent to
treat an incompetent adult may be acquired through the agency of relatives.81
The American case of Canterbury v. Spence82 has authoritatively been cited in
favour of the proposition that relatives consent should be sought as a substitute
where the patient is unable to comply. And close scrutiny reveals that the judg-
ment referred to the earlier case of Bonner v. Moran,83 apparently supporting
the contention that a patient’s relatives are eligible to give consent in circum-
stances where the patient is prevented from so doing. But Bonner v. Moran con-
cerned the eligibility of an adult relative to give consent on behalf of a child
patient and is therefore clearly distinguishable on its facts from Canterbury v.
Spence. Consequently, Canterbury v. Spence cannot provide the authority
claimed for it.
In general the courts are concerned that medical professionals, acting from
laudable motives, should not be subjected to legal sanction if they treat incom-
petent patients without consent. This has sometimes been expressed in terms of
protecting the public interest, in that it should be permissible as a matter of pub-
lic policy, for doctors to legitimately give emergency treatment to patients, even
in the absence of consent,
“. . . I would prefer to explain the emergency cases on the basis that it is in the public
interest that an unconscious patient who requires treatment should be able to receive
it and that those who give this treatment in an emergency should be free from any
threat of an action for trespass to the person”.84
However, there are some adult patients who are permanently incapacitated and
therefore require medical treatment in routine situations that cannot be defined
as emergencies. Incapacitated patients inevitably suffer from the same range of
80 P D G Skegg, Law, Ethics, and Medicine (Oxford, Clarendon, 1984) at 72–3.
81 See for example Johnson LJ in Wilson v. Pringle [1987] QB 237, who makes this assumption
but offers no legal authority to support it.
82 (1972) 464 F 2d 772 per Judge Robinson at 789.
83 (1941) 126 F 2d 121.
minor and major ailments as the rest of the population but are unable to give
legally valid consent for the treatment of these conditions. In the absence of spe-
cial mechanisms to authorise treatment even the pain and distress associated
with something as trivial as a toothache or an in-growing toe nail could not be
remedied. Best interests criteria has been established as a method of legitimately
providing treatment without consent in these circumstances.
Best Interests
The concept of best interests has purchase in respect of clinical decision-making

for all patients, competent and incompetent, adults and children. The doctor’s
duty of care to every patient lies in providing treatment according to that
patient’s best interests. So whether or not a particular treatment is regarded as
clinically indicated for a specific patient will depend on an analysis of the best
interests of that patient.
A patient with the capacity to consent can choose whether or not to accept the
treatment offered according to her own understanding of what constitutes her
own best interests. She is at liberty to assess and articulate her own desires with
respect to what kinds of terminal care intervention she finds acceptable. But an
incompetent patient who needs treatment will be treated according to some-
body else’s interpretation of her best interests. Clearly this is likely to be bene-
ficial in terms of general health and well-being, but it may be problematic for
people who have previously been competent and have expressed a wish not to
be treated in pre-determined circumstances. These issues will be specifically
addressed in the context of advance directives in chapter five, but much of that
analysis is underpinned by the concept of best interests, discussed here.
For patients who lack the mental capacity to consent to treatment the over-
riding legal principle governing their care is that at all times the treatment given
must be in their best interests:
“not only must (1) there be a necessity to act when it is not practicable to communi-
cate with the assisted person, but also (2) the action taken must be such as a reason-
able person would in all the circumstances take, acting in the best interests of the
assisted person”.85
The best interests approach is a founding principle in family law and has pro-
vided a framework within which the courts have adjudicated cases, whether
they turned on welfare principles concerning children or on treatment decisions
for incompetent adults, according to the merits of their individual facts. A range
of criteria can and have been used to determine what constitutes the best inter-
ests of a particular person in particular circumstances. As a result the best inter-
ests test has often been rendered imprecise in its application and its definition
85
reducing it, in Kennedy’s terms, to “. . . a somewhat crude conclusion of social

policy”.86
Re F,87 has been highly influential in defining the circumstances under which
it is lawful to treat an adult patient who is incapable of giving consent. It was
determined according to the application of best interests criteria. The judgment
sought to clarify the circumstances under which the test’s application is ger-
mane. The House of Lords held that the best interests test is apposite where a
person is unable to consent to medical treatment. It affirmed that referral to the
judiciary for a declaration that a particular therapy was in the best interests of
a patient, and therefore lawful, was appropriate and necessary, because
“no court now has jurisdiction either by statute, or derived from the Crown as parens
patriae, to give or withhold consent to . . . an operation in the case of an adult as it
would in Wardship proceeding in the case of a minor”.88
It also described the type of criteria that should be used to define the patient’s
best interests.
The Bolam test of professional competence provided the initial framework
for the House of Lords’ analysis of this patient’s best interests. Accordingly, it
was held that once it had been ascertained that a doctor had acted “in ac-
cordance with the practice accepted by a responsible body of medical men
skilled in that particular art”,89 she would not be in breach of the duty owed to
her patient. Thereafter, careful consideration should be given to the reason-
ableness of the proposed treatment, in the light of the circumstances of the
case, and with regard to certain procedural guidelines. To be reasonable the
procedure involved must be necessary in the medical circumstances, and ideally
the carers and relatives of the patient should have been consulted. Where
appropriate, the opinions of other specialists should also be obtained, so that
decisions are not taken in isolation. Factors specific to each case should also
be considered which, in Re F, included the woman’s right to control her own
reproduction, and the fact that even though she was physically healthy she
would be subjected to a serious, invasive and irreversible operation. The
reasonableness of the proposed treatment should be assessed by the clinicians
considering whether and what treatment to administer, with the consequence
that proceeding with any treatment subsequently shown to be unreasonable will
attract liability for battery.
Procedural guidelines dictate that the person responsible for the care and pro-
posed treatment of the patient, the Claimant, should make an application to the
court for a declaration that the treatment decision concerned can be lawfully
implemented in the absence of consent. Similar rules apply where treatment
86
Ian Kennedy, Treat Me Right: Essays in Law and Ethics (Oxford, University Press, 1994) at
395.
87
88
Ibid, per Lord Bridge.
89
[1957] 1 WLR 582, [1957] 2 All ER 118.
withdrawal from an incompetent patient is being considered. The patient

should normally be the Respondent in the case with representation by a litiga-
tion friend who will ordinarily be the Official Solicitor. Hearings are usually
conducted in private, subject to the court’s discretion, with the decision being
given publicly.90
After Re F Ian Kennedy argued that medical and judicial decisions deter-
mined according to the consideration of best interests alone, often disregard
fundamental issues of human rights and may therefore result in unsatisfactory
outcomes.91 Although Re F did not explicitly refer to human rights, F’s rights
were afforded some, albeit limited, protection since some of the rights issues
pertinent to the sterilisation of an incompetent adult woman were considered.
The fact that the controversial nature of sterilisation raises emotional and moral
issues, that it is permanent and should never be performed involuntarily with-
out the clearest justification was carefully assessed. Furthermore the inclusion of
the requirement that patients have a right to representation and privacy indi-
cates a recognition of the importance of these human rights. It remains debat-
able whether the outcome of Re F adequately protected her human rights or
those of potential future patients and Kennedy’s point may assume greater
importance in the light of the introduction of the Human Rights Act 1998 incor-
porating ECHR into domestic law. Subsequent cases have further illuminated
the application of best interests criteria, expanding the assessment to include
more than best medical interests and incorporating “medical emotional and all
other welfare issues”.92 Further the application of the Bolam test has recently
been limited in the assessment of best interests, such that once it is established
that the range of possible treatment options meet the Bolam criteria and would
be acceptable to a responsible body of medical practitioners, then it is for the
court to determine a patient’s best interests, according to welfare considera-
tions.93
These principles are clearly relevant to cases involving incompetent adults
and children, where courts have been charged with identifying whether a
patient’s best interests lay in continuing futile medical treatment when the alter-
native is withdrawing treatment so that the patient dies.94 Most notable
amongst these cases is Airedale NHS Trust v. Bland,95 the first British case con-
cerning the discontinuation of treatment for a patient in permanent vegetative
state. Here it was decided that the best interests test was appropriate where it is
necessary to determine the extent of a doctor’s duty of care to a particular
91 Ian Kennedy, Treat Me Right: Essays in Law and Ethics (Oxford, University Press, 1994) at
395.
92 Re MB (An Adult: Medical Treatment) [1997] 2 FCR 541, per Butler-Sloss at 555.
93 Re SL (Adult Patient) (Medical Treatment) [2000] 2 FCR 452.
94 There have to date been a number of such cases in the UK, see Airedale NHS Trust v. Bland
[1993] 2 WLR 316, Frenchay NHS Trust v. S [1994] 2 All ER 403, A National Health Service Trust
v. D [2000] Fam Law 803.
95 Airedale NHS Trust v. Bland [1993] 2 WLR 316, per Lord Goff.
patient. The limitations of merging the Bolam standard for assessing medical
negligence with criteria legitimating non-consensual treatment of incompetent
adults as in Re F, become apparent on close inspection of this and subsequent
judgements like Bland. Reference is made to the kinds of issues that ought to be
considered when determining the best interests of a patient who is unable to
consent, but consistency and cohesion are lacking due to the dearth of any
explicit guidance clarifying how to assess what actually constitutes a patient’s
best interests. Lord Mustill expressed his anxiety about the problem in evidence
presented to the House of Lords Select Committee on Medical Ethics when he
explained that:
“one of the things that is not very good is that the phrase best interest has been put into
play without any description of what it means. This . . . actually increases the diffi-
culties for the doctors rather than helps to solve them”.96
Some of the vagaries associated with the definition of best interests were spe-
cifically addressed by the Law Commission in its Report on Mental Incapacity
within it’s remit to consider “the ways in which decisions may lawfully be made
for those who are unable to make decisions for themselves”.97 The purpose of
the Report was to provide certainty for medical and legal decision-makers,
while offering protection to patients. Clause 3(1) of the Draft Bill proposed in
the Report, contains the general recommendation that, “any thing done for, and
any decision made on behalf of, a person without capacity should be done or
made in the best interest of that person”. So the best interests standard remains
pivotal in the decision-making process.
During it’s consultation process the Law Commission was made aware of the
inadequacies of the legal position following Re F, and of the expressed desire of
it’s consultees for “clear and principled guidance” about the assessment of best
interests.98 Consequently the Report outlines a “checklist of factors” to be con-
sidered in determining the best interests of any particular individual, in order
that the standard be judiciously applied to all health-care decisions made on
behalf of those who lack the mental capacity to consent for themselves. These
factors are contained in Clause 3(2) of the Draft Bill proposed in the Report,
which recommends that, “in deciding what is in a person’s best interests regard
should be had to”:
“(1) the ascertainable past and present wishes and feelings of the person concerned,
and the factors that person would consider if able to do so;
(2) the need to permit and encourage the person to participate, or to improve his or her
ability to participate, as fully as possible in anything done for and any decision affect-
ing him or her;
96
Select Committee on Medical Ethics (1993–4) HL 21-II, Oral Evidence at page 21 para 41 per
Lord Mustill.
97
The Law Commission Report No. 231 Mental Incapacity. Item 9 of the Fourth Programme of
Law Reform, Mentally Incapacitated Adults (1995) London, HMSO at para 1.1.
98
These comments are made in Consultation Paper No.119, paras 2.22–2.24.
(3) the views of other people whom it is appropriate and practicable to consult about
the person’s wishes and feelings and what would be in his or her best interests;
(4) whether the purpose for which any action or decision is required can be as effect-
ively achieved in a manner less restrictive of the person’s freedom of action”.
The Report stresses the importance of any known views of the individual
patient in respect of the decisions to be made in reference to the “ascertainable
past and present wishes”. It recognises the fact that some people have never had
the capacity to consent while others may have been able to anticipate their pre-
sent incapacity and recorded their opinions in advance of it. This would of
course be crucial in a case where a person had expressed a wish not to be main-
tained in a state of permanent incapacity. Consideration should therefore be
given to the factors that the individual herself “would consider” and any known
convictions and preferences of the previously competent individual. If however
a person has never attained the capacity to decide or express an opinion the
court will imply the standard of “a normal decent person, acting in accordance
with contemporary standards of morality”.99
Where “other people” are to be involved in the decision-making process the
Report is careful to point out that no one class of person is designated as any
more appropriate than any other. It may be practicable and appropriate to con-
sult relatives, or carers, or anyone nominated in advance by the patient to be
involved in decision making.100 Clearly any or all of these types of people should
be consulted in an effort to determine the wishes of the incapacitated person and
his or her best interests. The inclusion of the requirement to investigate less
restrictive treatment options in point (4) is in line with established medical and
legal practice and is particularly interesting in the context of medical decisions
that will lead to death. Clearly death is the most restrictive option available, and
where an action is brought with a view to obtaining a court declaration that it
will not be unlawful to pursue a treatment option that will result in death the
courts will effectively be making a life or death choice. The less restrictive
option will never be able to achieve that purpose.
The Law Commission developed these recommendations in response to the
inadequacies of the common law position in Britain, which offers minimal guid-
ance to clinicians as to how they should proceed in practice. They have not yet
been implemented by Government but remain authoritative. Other jurisdictions
have attempted to address the problem of legitimating medical treatment with-
out consent by adopting the principle of substituted judgement as an alternative
method of decision-making.
99
Re C (A Patient) [1991] 3 All ER 866,at 870.
100
Law Reform, Mentally Incapacitated Adults (London, HMSO, 1995) at para 1.1.
Alternative Decision-Making
Substituted judgement is founded on the principle of autonomy, as opposed

to the best interests standard which is based upon beneficence and non-
maleficence. It involves a designated proxy, or a court acting as proxy, making
decisions on behalf of the patient that are intended to reflect what the wishes of
the patient would have been, had she been able to respond. Arguably therefore
substituted judgement is an expression of the patient’s best interests “as that
patient would have defined them”,101 and provides a means by which the best
interests standard can be executed. However, as an autonomy based standard
and as a measure of an individual’s own assessment of her best interests, substi-
tuted judgement can, in practice, be an imperfect device.
Firstly, proxy decision-makers bring with them their own idiosyncrasies and
prejudices, which will necessarily influence the decisions they make. Autonomy
is worthless if a proxy consents to a procedure believing it to be in the patient’s
best interests but knowing that the incompetent individual would not have con-
sented in the circumstances. The objectivity of the proxy decision-maker is cru-
cial to the efficacy of the process of substituted judgement but is not easily
guaranteed or verified. Hence, when the applicability of the substituted judge-
ment test in English law was discussed in Bland102 it was rejected by Lord Goff,
“I do not consider that any such test forms part of English law”, and by Lord
Mustill, “the idea is simply a fiction, which I would not be willing to adopt”. Yet
both here, and in the earlier case Re T,103 it was held to be appropriate to con-
sider the opinions of relatives while compiling evidence about the patient’s best
interests.
Secondly, the substituted judgement test is not appropriate in all circum-
stances. Specifically, it is inappropriate to apply such a test to patients who have
never been competent to make decisions for themselves, such as permanently
mentally disabled adults and minors. Much of the discussion of the principle of
substituted judgement in English cases has centred on cases where the test was
inappropriately applied. For example, Belchertown State School Superintendent
v. Saikewicz,104 Re Moe,105 and Re Jane Doe,106 all of which purported to apply
the principle of substituted judgement to patients who had never been compet-
ent and whose wishes therefore could never have been known or expressed.
These examples have been responsible for much confusion about the applica-
tion and appropriateness of the substituted judgement test. As a consequence
English courts continue to be reluctant to adopt it despite the fact that in other
101 P S Appelbaum, C W Lidz, A Meisel, Informed Consent: Legal Theory and Clinical Practice
(New York, Oxford University Press, 1987).

102 Airedale NHS Trust v. Bland [1993] 2 WLR 316, per Lord Goff.
103 Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649.
104 373 Mass 728 (1977).
105 432 NE 2d 712 (1982).
106 583 NE 2d 1263 (1992).
Conclusions – A Consent Too Far 93
jurisdictions substituted judgement has clearly played a valuable role in deter-

mining the preferences of patients who become incompetent.107
The proposals for legal reform within Law Commission Report 231108 do go
some way towards better defining the mechanisms of legitimately providing
treatment to permanently incompetent adults, as do subsequent proposals for
legislative reform.109 New forms of decision-making are considered and recom-
mendations are made concerning the introduction of a continuing power of
attorney to deal with matters such as admission to hospital,110 the appointment
by the court of managers to manage property and financial matters,111 and the
expansion of the use of advance statements about health care.112 Essentially
however, the recommendations centre around defining what constitutes the best
interests of any individual while leaving the existing legal framework largely in
tact. They fail to strengthen principles of individual autonomy or to offer alter-
native mechanisms for making decisions on behalf of people who cannot con-
sent. Valuable support is advanced for greater use of living wills, and the
potential impact of these on end-of-life decision-making will be assessed in
detail in chapter five. The introduction of many of these recommendations
would be helpful in terms of providing guidance for the medical profession but
may also lead to a degree of inflexibility which the present common law
approach of considering individual cases according to their particular facts
tends to avoid.
CONCLUSIONS — A CONSENT TOO FAR ?
Obvious tensions exist in the law of consent as far as decision-making at the end
of life is concerned. Competent people who are able to articulate their own
views may wish to have their lives ended to avoid the perceived indignities asso-
ciated with protracted suffering, but their consent will not legitimate medical
intervention leading to this conclusion. People who are not able to decide for
themselves due to mental incapacity will have decisions made for them by oth-
ers, according to an assessment of their best interests. Paradoxically they may be
permitted to die and ironically, these people are usually not suffering or even
aware of their potential to suffer. It is clear therefore that an inherent inconsist-
ency exists in the legal approach to life limiting decisions. Those who can make
107 Re Quinlan 70 NJ 10 (1976) is illustrative of the successful operation of substituted judge-
ment.
108
109
Lord Chancellor’s Department, Who Decides? Making Decisions on Behalf of Mentally
Incapacitated Adults (London: HMSO, 1997) Cm 3808, Lord Chancellor’s Department, Making
Decisions (London: HMSO, 1999) Cm 4465.
110
111
Ibid at para 8.41.
112
Ibid at paras 5.1–5.39.
valid and considered decisions on their own behalf are not permitted medical
assistance, seemingly for fear of abuse, while those who cannot participate in
the decision-making process are allowed to die. The deaths of each of these
groups may in actuality appear similar. Withdrawing nutrition and hydration
from a patient will result in a slow death as will the failure to intervene for the
competent but incurable or terminally ill patient, but one is regarded as more
dignified and the other less.
At present patients can only influence the manner of their dying through their
ability to refuse medical treatment. Few concerns arise for those who are able to
make autonomous medical decisions so long as their decisions are respected by
the attending medical professionals. However, problems develop when the effi-
cacy of a decision is questioned and where the patient’s competence to make a
decision is debatable, especially if consent is denied and death is the expected
consequence. In this case autonomy may be compromised by an assessment that
the patient is not competent, resulting in their treatment refusal being overrid-
den.
Many people consider the possibility of becoming permanently incompetent
before it happens to them. They may determine what action they would like to
have taken on their behalf through a living will, hoping to ensure that they are
not kept alive inappropriately against their known wishes. In reality the aspira-
tions of this group need less protection of than others who retain competence
but are powerless to act on their wish to die, because legal precedents and the
application of best interests criteria favour allowing the permanently incompet-
ent to die, while the criminal law prohibits deliberate actions causing death,
even at the considered request of a competent patient.
The practical limits of individual autonomy are readily exposed when con-
sent is considered in relation to best interests analysis and competency at the end
of life. For example, are patients always able to exercise autonomy and in what
circumstances will autonomous decisions be subjected to medical scrutiny? In
theory the same legal mechanisms and rules apply to withholding or refusing
consent and to giving consent but practical and ethical distinctions are often
drawn which can be destructive of autonomy. The legal response to these issues
is, at best in need of clarification, and at worst riddled with inconsistency
4
Autonomy, Self-Determination,
and Self-Destruction
“Perhaps the most fundamental precept of the common law is respect for
the liberty of the individual. In a medical context this means that a person’s
right to self-determination, to deal with his body as he sees fit, is protected
by the law”.1
INTRODUCTION — AUTONOMOUS CHOICES
In medical law the fundamental right of self-determination, described here by

Ian Kennedy, represents the right of each person to exercise personal autonomy,
to act as a sovereign individual, and to exercise independent choices. As such,
autonomy provides the foundation to the law of consent, and has come to be
regarded as the linchpin of health care decision-making.2 Legal recognition of
the right to self determination and autonomy in medicine dictates that individ-
uals are not subjected to the arbitrary imposition of the wishes or ideals of
others. It is no surprise then that autonomy is heralded as being pivotal to the
right to make end-of-life decisions, but how far respect for decision-making
autonomy extends and whether it can countenance life limiting decisions is
questionable.
Personal autonomy can be seen as being composed of three separate categor-
ies; autonomy of thought, of will and of action.3 Together these encompass the
notion that individuals are able to think for themselves, make decisions and act
accordingly. The physical integrity of the body is defended from unauthorised
invasion, whether hostile or not, because any physical touching of one person
by another without the authorisation of the person concerned is proscribed
by the criminal and the civil law. Furthermore the prohibition against
non-consensual contact exists even if the touching takes the form of life saving
1
I Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Oxford, Oxford University
Press, 1991) at 320.
2
See for example, Schloendorff v. Society of New York Hospital (1914) 105 NE 92, 93, per
Cardozo J, Sidaway v. Bethlem Royal Hospital Governors [1985] 1 All ER 643 at 666. Re T (Adult:
Refusal of Treatment) [1992] 4 All ER 649, at 652–3, and Airedale NHS Trust v. Bland [1993] 1 All
ER 821, at 860. This right is also endorsed in the Government policy document “A Guide to Consent
for Examination and Treatment” issued by Dept. of Health and the Welsh Office, and The Patient’s
Charter.
3
R Gillon, Philosophical Medical Ethics (Chichester, Wiley, 1985).
96 Autonomy, Self-Determination, Self-Destruction
medical treatment.4 Intellectual self-determination, which is concerned with

choices and decisions, is largely protected by the right of the individual to deter-
mine, by whatever means, whether or not to consent to medical intervention.5
The renowned words of J S Mill that “the only purpose for which power can be
exercised over any member of a civilised community, against his will, is to pre-
vent harm to others”6 provide the basis upon which this right is founded.
Furthermore, it is a right that even prevents others interfering in decisions to
harm oneself since such power should not be exercised for “his own good, either
physical or moral, is not sufficient warrant”.7 This being the case individuals
should be free to autonomously decide for themselves whether or not they choose
to end their own lives, provided that no one else is harmed by the decision.
Choice is frequently associated with the preservation of human dignity in
dying, so that to have ones choices respected, and thereby to maintain control,
is regarded as inherently more dignified than being subjected to futile and
unwelcome medical interventions at the end of life.8 Autonomy is central to the
ability to make valid end of life decisions, and the legal protection of autonomy
ensures that individual choices are respected. Hence autonomy should play a
pivotal role in end of life decision-making, permitting people the opportunity to
decide the timing and circumstances of their own demise if that is what they
wish. In practice however, individual autonomy is rarely absolute. The inherent
limitations of our own capacity to understand and take action often restricts the
exercise of autonomy. Autonomy fluctuates over time and is dependent upon
factors like, how much information we have about the environment within
which the decision is to be made. Similarly, where decisions are contingent upon
knowledge of their potential impact on others. For example, one person might
avoid choosing to die to protect loved ones from imminent trauma. Another
might select a life-limiting option by acting altruistically to try to prevent fam-
ily and friends experiencing distress and suffering at witnessing her gradual
demise, or wishing to avoid becoming burdensome to those she cares for.9 No
person is an island and decisions are often influenced by considerations relating
to our social surroundings and relationships with others.
4 For example, in Airedale NHS Trust v. Bland [1993] 1 All ER 821, Lord Keith held that, “. . . it
is unlawful, so as to constitute both a tort and the crime of battery, to administer medical treatment
to an adult, who is conscious and of sound mind, without his consent . . . such a person is completely
at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die”,
at 860.
5
Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649, at 652–3.
6
J S Mill, Utilitarianism, On Liberty and Considerations on Representative Government,
(London, Dent, 1972) at 73.
7
Ibid.
8
See for examples, T E Quill, Death and Dignity. Making Choices and Taking Charge (New
York, Norton, 1993), C Seale, J Addington-Hall, “Euthanasia: Why People Want to Die Earlier”
(1994) 39 Social Science and Medicine, 647–54.
9
These concerns are explored more fully in H Biggs, “I Don’t Want to be a Burden! A Feminist
Reflects on Women’s Experiences of Death and Dying” in S Sheldon and M Thomson (eds.),
Feminist Perspectives on Health Care Law (London, Cavendish, 1998) at 279.
Introduction – Autonomous Choices 97
Janet Adkins, Dr Kevorkian’s first “victim”, seems to typify this sentiment.

Diagnosed as suffering from Alzheimer’s Disease she is reported to have
planned her death at a time which would be least disruptive to her family, par-
ticularly by avoiding spoiling Christmas. She also selected a time that enabled
her to organise her own memorial service and is said to have “arranged for a
therapist to mediate final ‘closure’ sessions with her family”.10 Where choosing
suicide amounts to one person wanting to sacrifice herself for the good of oth-
ers because she feels socially pressured, serious misgivings arise about whether
that person is making an autonomous decision. Whether the pressure is real or
imagined, covert or overt,11 doubts persist about the quality and efficacy of
choices made in these circumstances. They may appear to be autonomous but
are clearly defective if influenced by the needs of others.12
Temporary or permanent incapacity is also destructive of autonomy,13 and
conflicts are likely to arise concerning medical decisions with dangerous or life
threatening consequences, where the patient appears to lack the competence to
decide for herself. Kennedy illustrates one approach to the problem of how to
enable those with diminished capacity to act autonomously with the example of
a child who resists medical treatment fearing pain, discomfort or embarrass-
ment. Somewhat paradoxically he asserts that where such a child lacks the
capacity to act autonomously, failing to act on her wishes is actually autonomy
enhancing. He defends his position with the logic that if an individual is unable
to make decisions in her own best interests then allowing somebody else to do
so in order to preserve her long term well-being is a way of affording respect and
protecting that person from harm.14 In many respects what Kennedy proposes
here is perhaps an acceptable face of paternalism in the sense of a caring parent
attempting to augment the autonomy of one whose decision is invalid for want
of full information, and because she lacks sufficient maturity or experience to
fully appreciate the gravity of her decision. Perhaps therefore, after reasoning
has been tried and failed it may be an acceptable approach to protect the long
term interests of young children. It is not an approach that can be readily
applied to adult patients. Nevertheless, in the context of death and dying Kay
Wheat applies similar reasoning and agrees with Kennedy that, “we can justify
intervention in the short term, whilst respecting a long term wish to die as being
taken in an autonomous, impartial way”.15 Her view is that time is needed to
10 S Gutmann, “Dr Kevorkian’s Woman Problem: Death and the Maiden” 24 June 1996, New
Republic, 3.
11 See R M Cole, “Communicating with People who Request Euthanasia” (1993) 7 (2) Palliative
Medicine 139–43.
12 John Harris considers the shortcomings of idealised notions of autonomy in decision making
in J Harris, The Value of Life: An Introduction to Medical Ethics, (London, Routledge, 1985) at 195.
13 A full discussion of the assessment of capacity and its implications for decision-making is
included in ch. 5.
14 I Kennedy, Treat Me Right: Essays in Medical Law and Ethics (Oxford, Oxford University
Press, 1991) at 320.

15
K Wheat, “The Law’s Treatment of the Suicidal” [2000] 8 Medical Law Review 182–209, at
208.
permit considered and reflective decision-making in case a different conclusion

might be reached. But a general acceptance of this attitude would surely be
destructive of autonomy, particularly if it entails ignoring the final wishes of
dying patients.
Despite well publicised misgivings,16 many clinicians do regard paternalism
of this type as acceptable, or even beneficial. Raanan Gillon comments that
“sometimes one has as a doctor to be paternalistic to one’s patients—that is, to do
things against their immediate wishes or without consulting them, indeed perhaps
with a measure of deception, to do what is in their best interests”.17
This model does not dictate riding roughshod over patients’ autonomous deci-
sions, but implies that wherever possible every effort should be made to pro-
mote understanding and autonomy. Other commentators take a more rigorous
stance however, suggesting that “a certain amount of authoritarianism, pater-
nalism and domination are the essence of the physician’s effectiveness”.18 Even
if adopted in the name of the patients best interests this approach is question-
able, especially if the pursuit of a clinical perception of best interests might
restrict the effective choices of a patient seeking dignity in dying. Surely a physi-
cian’s effectiveness should never be secured by failing to respect the patients
right to self-determination through deceit and lies?
Respect for patient autonomy dictates that a doctor “has a duty to respect the
integrity and individuality of the person before him”19 and John Harris has per-
suasively described medical rejection of a competent patients wishes as “the
most profound of insults”.20 In line with his reasoning, dicta from Re T (Adult:
Refusal of Medical Treatment) insist that
“an adult patient who . . . suffers from no mental incapacity has an absolute right to
choose whether to consent to medical treatment, to refuse it or to choose one rather
than another of the treatments being offered”.21
So in theory the autonomous choices of a competent adult ought to be respected

in all circumstances, regardless of the substance, perceived morality, or certain
outcome of the decision made.
Deliberate subversions of patients’ autonomous medical decisions are thank-
fully becoming less commonplace, but there are still those who are potentially
able to act autonomously yet find their autonomy and freedom to choose com-
promised, either by the level of information they receive, or because they have dif-
ficulty understanding and applying that information. Similarly, the circumstances
16
See generally, R E Sartorius, (ed.) Paternalism (Minneapolis, University of Minnesota Press,
1983), M M Shultz, “From Informed Consent to Patient Choice: a New Protected Interest” (1985)
95 Yale Law Journal 219, M Brazier, Medicine Patients and the Law (London, Penguin, 1987) chap-
ters 1–4, and S A M McLean, A Patient’s Right to Know (Aldershot, Dartmouth, 1989).
17 R Gillon, Philosophical Medical Ethics (Chichester, Wiley, 1985).
18 F J Ingelfinger, “Arrogance” (1980) 303, New England Journal of Medicine 1507–11.
19 I Kennedy, The Unmasking of Medicine (London, Paladin, 1983).
20
J Harris, The Value of Life (London, Routledge, 1985) at 80.
21
[1992] 4 All ER 649 at 652–3.
Introduction – Autonomous Choices 99
within which medical care is administered may effectively undermine the

patient’s right to self-determination, especially if the patient is contemplating
making choices that will be instrumental in her own death.
In any institutional setting individuals may be unusually insecure, and unfa-
miliar surroundings with unknown personnel and routines will almost
inevitably impinge upon a person’s ability to act as an autonomous agent. In sit-
uations involving medical care, illness, lack of understanding and fear may com-
pound and intensify these insecurities. O’Neill recognised many years ago that
when stripped of clothing, familiarity of surroundings and emotional support,
patients can find it difficult to express doubts and fears about the efficacy of pro-
posed forms of treatment:
“One patient can indeed be expected to come to an informed and autonomous (if idio-
syncratic) decision; another may be too confused to take in what his options are. A
third may be able to understand the issues but be too dependent or too distraught to
make decisions”.22
Clearly some people are more assertive than others. Self-assured people will
probably be able to grasp and control the situations where their awareness and
consent is required and ensure that their own wishes prevail. Others however do
not posses the ability or comprehension to challenge the received wisdom of
those who can determine their immediate medical future. Furthermore, because
of the complexity of the situation when a patient wants to make a life-limiting
decision, the personnel responsible for providing medical care may be poorly
equipped to recognise those who give consent, or perhaps refuse to, despite their
taciturn scepticism or ignorance. Here again the patient’s ability to act as an
autonomous agent is compromised.
In the context of clinical decision-making Len Doyal defines respect for auton-
omy as an indeterminate morality. His model describes respect for autonomy as
often imperfect, and the exercise of autonomy as ill-defined and made up of weak
and strong elements. All who have the ability to make ordinary everyday deci-
sions in their lives possess weak autonomy, while strong autonomy attaches only
to those who are able to scrutinise the information they receive in terms of
impact and outcome, and thereby make fully informed choices.23 Accordingly
some patients might never be able to make autonomous medical decisions while
others achieve autonomy in some situations but not others. Close inspection of
autonomy in medical decision-making reveals therefore, that the ability to effec-
tively exercise individual autonomy and self-determination can be easily invali-
dated. It is not surprising then that questions about the nature of autonomy are
considered fundamental when people seek to have decisions that will lead
directly to the end of their lives upheld by the law. Perhaps the most visible end-
of-life decisions are taken by people who opt to kill themselves by suicide, and it
22
O O’Niell, “Paternalism and Partial Autonomy” (1984) 10 Journal of Medical Ethics 177.
23
L Doyal, “Medical Ethics and Moral Indeterminacy” (1990) 17 (1) Journal of Law and Society 1.
is here that many of the tensions inherent in the debate about autonomy and self-
determination at the end of life are poignantly identified.
CHOOSING TO DIE — SUICIDE AND AUTONOMY
The relationship between death with dignity and respect for individual auto-
nomy is always complex and intriguing, and nowhere less so than with respect
to suicide and assisted suicide. Suicide can appear to be the ultimate act of self-
determination since it implies that a person has deliberately opted to bring
about the end of life but reality may not confirm this view.
Suicide, or self-murder, was decriminalised in England in 1961.24 It remains,
however, for a coroners court to return a verdict of suicide having determined
that death was intentionally caused by the victim’s own hand. The inclusion of
actus reus and mens rea as criteria for determining that a death was caused by
suicide satisfies requirements usually associated with criminal law and demon-
strates the tensions that still exist between the social perception of suicide and
its legal status. Metaphorically, suicide might be described as the vampire in the
mirror of murder; it is invisible as a crime since it is not proscribed by law but
must be defined by a court of law within the same parameters as murder.
Suicide has existed in all social settings throughout history, but in different
cultures and across time it has been differently regarded. Social, legal, and philo-
sophical approaches to suicide across the ages inform modern day perceptions
of the phenomenon through theological and philosophical theory, references in
literature and more latterly depictions in the media. Biblical references to suicide
are apparently devoid of condemnatory remarks25 and throughout the Roman
Empire suicide was considered honourable where it reflected a commitment to
high political or moral ideals.26 Similarly, in medieval society, suicide was some-
times accepted as a noble conclusion in the aftermath of sexual assault or rape.
More often though it was considered to be an offence against God and the State,
and categorised as criminal.
“. . . the law of England wisely and religiously considers, that no man hath a power to
destroy life . . . and as the suicide is guilty of a double offence; one spiritual, in evad-
ing the prerogative of the Almighty . . . and the other temporal, against the King . . .
the law has ranked this among the highest crimes, making it a peculiar species of
felony, a felony committed on oneself”.27
Modern day Judaeo-Christian taboos on suicide reportedly stem from Saint
Augustine’s description of it as a “mortal sin” in his fourth century work, City
of God.28 His pronouncement seems to have been based on anxieties within the
24
Attempted suicide was a criminal offence until the enactment of the Suicide Act 1961.
25
B Barraclough, “The Bible Suicides” (1990) 86 Acta Psychiatrica Scandinavia 64–69.
26
M G Velasquez, “Defining Suicide” (1987) 37 (3) Issues in Law and Medicine 40.
27
Blackstone, Commentaries on the Laws of England (1769) 4 at 189.
28
C Pritchard, Suicide—The Ultimate Rejection (Buckingham, Open University Press, 1995) at 10.
Choosing to Die – Suicide and Autonomy 101
Church at the time about false martyrdom, and led to practices such as the pro-
hibition on burying the bodies of those who had committed suicide in hallowed
ground.
Even after these concerns had faded the religious and social sanctions against
suicide persisted so that it carried enormous social stigma. In England attempted
suicide was considered a felony from the fourteenth century onwards. As a
result, anyone who survived a suicide attempt would face the death penalty and
have their assets seized by the state.29 The primary purpose behind the crimin-
alisation and punishment of suicide appears to have been to raise income for the
Government, since there can be little point in censuring someone who has tried,
and failed, to kill themselves by executing them. The property and possessions
of successful suicides would also be forfeited and their bodies would have stakes
driven through them before being placed at a cross-roads. Perversely, in France,
the body of a suicide might even have been put on trial before being publicly cru-
cified.30
Despite the stigma often attached to it, suicide has tended to be romanticised
in popular culture. Shakespeare’s Romeo and Juliet typifies a rather sentimental
portrayal of suicide as an ultimate act of love, and Cleopatra’s suicide has also
been idealised as a noble and honourable death. Even where a character con-
templates suicide in tragic circumstances the contemporary audience frequently
admires the courage and logic if not the motivation. The reverence with which
the Hamlet soliloquy is regarded exemplifies this response:
“To be or not to be, that is the question:- Whether ‘tis nobler in the mind to suffer the
slings and arrows of outrageous fortune; Or take up arms against a sea of troubles,
And, by opposing, end them? . . . To die,—to sleep;—To sleep!—Perchance to dream;
ay, there’s the rub; for in that sleep of death what dreams may come, when we have
shuffled off this mortal coil . . .” (Hamlet III. i).
The lines were written at a time when suicide was generally regarded as a mor-
tal sin and stigmatised even more profoundly than today. Yet then, as now,
these words evoke the misery of the dilemma and provoke sympathy and per-
haps admiration for the person faced with the ultimate awful choice.
Today, suicide represents the highest cause of death in young people in all
developed western countries and is more often regarded as a tragic waste of life
rather than a noble death. The actual statistical incidence of suicide is hard to
determine, since it remains socially stigmatised and is consequently thought to
be underreported. Many deaths are recorded as accidental when they may have
been the result of misadventure or suicide, because coroners tend only to
attribute the most obvious cases to death by suicide. As a result statistics relat-
ing to suicide are generally regarded as underestimating the magnitude of the
29 G Williams, The Sanctity of Life and the Criminal Law (London, Faber and Faber, 1957) at
274–5.
30 C Pritchard, Suicide—The Ultimate Rejection (Buckingham, Open University Press, 1995) at 10.
incidence, and reputed to represent a minimum figure.31 Difficulties in record-

ing and reporting may be due in part to the methods selected by those who
attempt to kill themselves. Men tend to be impulsive and choose drastic
methods, which are more likely to succeed but may be recorded as accidental
death, especially if the impulse allowed no time for the traditional suicide note.
32 Women, on the other hand, tend to favour less dramatic methods, like self-
poisoning, which are less likely to be misconstrued.33 World Health Organ-

isation figures point to a suicide rate of one hundred and twenty-one per million
head of population in the United Kingdom for the year 1992. That year 4,628
were suicides recorded, and official figures for 1997 attribute 5,993 deaths to
suicide,34 demonstrating a year on year increase. Pritchard explains that this
amounts to more than ten times the homicide rate, even taking into account
terrorism in Ireland, and that this has enormous resource implications. The
figures are similar in other western countries.35
Within these statistics most suicides are characterised by mental illness, with
the suicide rate amongst people with mental illness being equivalent to more
than 80 times that of the general population.36 Legitimate concerns arise
here as to whether the individuals involved have exercised an autonomous
choice to take their lives. People diagnosed as suffering from mental illness may
not be competent to make free and independent moral decisions, hence respect-
ing their decisions as autonomous is problematic. Decisions taken in these cir-
cumstances may therefore be overridden, for example if such a patient is
admitted to hospital requiring emergency life saving treatment,37 despite an
apparently deliberate choice having been made. The unmistakable assumption
here is that a wish to commit suicide can be distinguished from other decisions
affecting health and welfare. Protectionism born of paternalism, as described
earlier by Kennedy and Wheat, is the probable justification but conflicts are
unavoidable where clinical discretion conflicts with a patient’s apparently
autonomous decision.
Celia Wells has eloquently described the dilemma experienced by all who are
involved in this kind of decision-making process:
“On the one hand the image of the surgical team bearing down on an unwilling patient
with its spectre of naked self-defence in the face of coercion is offensive. On the other,
31
S Ridley, “Sudden Death from Suicide” in D Dickenson et al (eds.), Death Dying and
Bereavement (London, Sage, 2000) at 54.
32
S Mayor, “Suicide in Young Men Needs Multiagency Solutions”, (2000) 320 BMJ 1096.
33
C Pritchard, Suicide—The Ultimate Rejection (Buckingham, Open University Press, 1995) at
55–6.
34
Office for National Statistics, DVS3.H Mortality Statistics (1997) London.
35
C Pritchard, Suicide—The Ultimate Rejection (Buckingham, Open University Press, 1995) at
56.
36
Department of Health, The Health of the Nation: A Strategy for England and Wales (London,
HMSO, 1992).
37
See M Brazier, M Lobjoit, Protecting the Vulnerable (New York, Routledge, 1991).
there is the competing thought of the sense of despair that must affect those seeking to
help, to do that which is both a natural and in this instance a professional reflex, to
preserve the life of another”.38
Thus, in a clinical emergency where medical attendants confront a patient who

has apparently irrationally refused to consent to the available treatment, legal
clarification may be sought, especially if the failure to treat has life threatening
consequences. Such disputes are particularly likely to arise in relation to emer-
gency treatment that has been refused by a patient, or by a parent on behalf of
a minor. The legal resolutions of tensions generated by conflicts between clini-
cal judgement and patient’s treatment preferences are frequently illustrative of
paternalistic legal attitudes,39 where the expressed wishes of a patient were
overridden by the court in an unfolding clinical emergency. At issue are respect
for patient autonomy (the right to give or withhold consent to treatment), the
rationality of the decision to refuse consent and treatment and the efficacy of
proceeding with treatment in the absence of consent.
In favour of the courts approach, it must be remembered that in medical
decision-making generally the choices made by patients sometimes seem less
than rational or autonomous. Many patients encounter illness without the
knowledge or expertise to understand and address the issues raised by treat-
ments proposed by their doctors. Moreover, clinical practice often precludes
any more than the most superficial notification process, and the shortcomings of
the rudimentary knowledge of the workings of the human body which many
patients exhibit, may be exacerbated by the specialised language used by med-
ical professionals. Understanding disease and therapy requires an awareness of
anatomy, physiology and pharmacology, not normally possessed by people
without medical qualifications. It is probable therefore that, even in the presence
of understandable and detailed explanations from medical professionals, many
patients give or refuse consent while unaware of all the potential implications
and complications of the therapy or investigation that is proposed. In emer-
gency situations greater confusion and consternation is understandable.
Consent forms designed to guard against unauthorised treatment interven-
tions require that medical professionals should provide patients with the
information necessary to anticipate the implications and complications of pro-
posed treatments. Within this framework opportunities are provided for
patients to gather complete information prior to giving consent by inviting them
to question information they do not understand, or would like explained more
fully, as a means of protecting their autonomy. But, in order to avail themselves
of this safeguard patients need a level of understanding about their own medical
conditions and the procedures and techniques likely to be adopted in treating or
Law 65 at 69.
39 Examples include, Re S (Adult: Refusal of Medical Treatment) [1992] 4 All ER 671, Re T
(Adult: Refusal of Treatment) [1992] 4 All ER 649, St George’s Healthcare NHS Trust v. S [1998] 3
All ER 673.
diagnosing them, which is beyond many people’s experience. It is simply not

possible to know whether you have received sufficient information to make an
informed decision if you are ignorant of the details involved and are reliant on
somebody else furnishing good advice. Thus, in doctor’s surgeries and hospital
wards anecdotal comments like, “. . . I don’t understand what is happening so I
just let them get on with it”, are perhaps not surprising. Consequently, an
apparently autonomous consent or refusal could later prove to be invalid
because the patient failed to fully comprehend the information upon which it
was based. Urgent decision-making will undoubtedly compound the difficulties.
Against this, some patients are well aware of their own limitations in pro-
cessing and responding to medical information and might prefer to deliberately
distance themselves from the decision-making process. Even when fully fit some
patients may be afraid or reluctant to discover the full ramifications of their con-
dition and its management, or may just prefer to remain ignorant. On finding
themselves in hospital and redefined as patients, others can experience profound
insecurity when they are weakened by illness and in an alien environment. As a
result, many patients choose to “positively and deliberately delegate doctors to
manage their case”.40 They distance themselves from clinical decision-making
and defer unconditionally to the judgements of health care professionals, pur-
posefully placing themselves in the hands of their doctors because that is where
they feel most comfortable. It is debatable whether or not autonomy is upheld
in these circumstances but, a consent is likely to be entirely legally valid in these
circumstances, given that:
“when questioned specifically by a patient of apparently sound mind about risks
involved in a particular treatment proposed, the doctor’s duty must . . . be to answer
both truthfully and as fully as the questioner requires”.41
While, ideally, full information should always be provided, especially in very

grave situations concerning end-of-life decisions, patients who are resistant to
receiving that information may exercise their autonomy by choosing to defer to
medical expertise. Even in this context, it can however be “wrong to conceive of
respect for autonomy as being just a matter of honouring an individual’s right
to choose without coercion”.42
Just as it can be difficult to understand how deliberately depriving oneself of
information upon which to base decisions can be autonomy enhancing, the notion
of a person exercising self-determination by deciding to end her own life could be
regarded as bizarre and irrational. Yet to some, suicide may appear to be a ratio-
nal choice in response to an intolerable situation. Closer scrutiny might reveal that
the level of autonomy in the decision-making process is sometimes questionable,
and with it the oft unchallenged relationship between autonomy and choice.
40
41
Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital
[1985] 1 All ER 643, per Lord Bridge at 662.
42
L Doyal, “Medical Ethics and Moral Indeterminacy” (1990) 17 (1) Journal of Law and Society 1.
People who contemplate suicide frequently do so because they believe they

have no choice. To them the options are so limited that the decision is really out
of their hands,43 so that they feel they have no alternative but to follow their
instincts and end their lives. Furthermore, once the decision has been made and
steps have been taken towards suicide, it seems that this dearth of alternatives is
simply magnified. Accordingly, one suicide survivor reported that, “it was as if
I’d already gone over, somehow—the problem was not how to die but would
have been how to stay alive”.44 If a person is constrained, perhaps by lack of
information or understanding, and feels compelled to act, autonomy plays a
very limited role in the suicide decision. Suicide in these circumstances may be
considered misguided, on the basis that it probably does not represent a ratio-
nal choice. Medical intervention can be easily legitimated where a person’s
motivation is this uncertain. The law is clear though: even choices that will
result in death need not be rational in order to be valid.45 It is mental capacity
that governs the validity of decisions. Strong arguments can be made for auto-
nomy to be respected where it is certain that a competent person is acting inten-
tionally.
Where it is not possible for a person to terminate their own life without assist-
ance however, clear legal prohibitions exist. Active euthanasia, involving delib-
erate steps being taken by one person to bring about the death of another,
amounts to murder, and assisting suicide is prohibited by statute.46 Advocates
of legal reform to permit euthanasia and assisted death contend that people
should be empowered to maintain independence and control of their lives up to
and including the moment of death, and that within this the ability to decide the
time, place and manner of dying is fundamental. Conversely, it is arguable that
neither euthanasia nor assisted suicide should be construed as true expressions
of absolute individual autonomy however, since both require the active parti-
cipation of other people. Where they do occur, interesting tensions exist
between the autonomy of the recipient of euthanasia and that of the actor,
which may ultimately be destructive of the dignity of each.47
Medically assisted suicide is not usually sought because of despair due to
“community or circumstance, which shatters [one’s] hold on the value of life”48
and questions one’s competence. It is generally contemplated because life and
medicine have nothing left to offer except a prolongation of the dying process,
where dependence and loss of control will inevitably follow. Hence, where a
patient declines further treatment because of its perceived futility, concerns
about compulsion and rationality should be avoided. Those who bring about
43 A Alverez The Savage God (London, Weidenfield and Nicholson, 1971).
44 Recounted in S Ridley, “Sudden Death from suicide” in D Dickenson et al (eds.), Death Dying
and Bereavement (London, Sage, 2000) at 54.
45 Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649.
46 s.2 (1) Suicide Act 1961 imposes a maximum penalty of 14 years imprisonment for those who
aid, abet, council or procure the suicide of another.

47 This point is discussed in greater detail in ch. 6.
48 C Pritchard, Suicide—The Ultimate Rejection (Buckingham, Open University Press, 1995) at 2.
their own demise in these circumstances do so in order to preserve their auto-

nomy and dignity until the end of their lives. These are the actions of people who
can apply the independence of thought, will and action described by Gillon as
fundamental to autonomy and human dignity. In seeking release from a life they
perceive as intolerable and choosing to bring about their own death they are
shaping their own destiny.
The law permits people to follow this course of action, provided they possess
mental capacity. Interestingly decisions of this nature are not characterised as sui-
cide,49 neither are those of hunger-striking prisoners, as the courts and clinicians
prefer to regard them as refusals of treatment and nutrition.50 Distinguishing
these actions as other than suicidal is problematic however, especially in the case
of prisoners who apparently intend that their decisions should be upheld even if
death is the inevitable consequence. They refuse food and hydration for a variety
of reasons, often involving political pressure and a desire to manipulate prison
authorities, motivations which are not readily applied to cases involving patients
who seek to terminate their lives. The desire to terminate a life deemed as
intolerable by declining further medical treatment is an entirely different matter.
Brian Clark’s play Whose Life is it Anyway?51 epitomises the plight of many
who feel condemned to a life of dependence and indignity by the intervention of
modern medical technology. The play’s main character, Ken Harrison, was
paralysed in a road accident and is fighting a legal battle to have his decision to
be discharged from hospital upheld. Leaving hospital will inevitably result in his
death because he is physically incapacitated and needs assistance with food and
fluids and to keep his lungs functioning. Harrison bases his claim on arguments
about autonomous choice and human dignity, pleading dramatically:
“I know that our hospitals are wonderful. I know that many people have succeeded in
making good lives with appalling handicaps. I’m happy for them and respect and
admire them. But each man must make his own decision. And mine is to die quietly
and with as much dignity as I can muster”.52
Ken Harrison’s plight is profoundly disturbing and raises real dilemmas con-
cerning the ability of any person to act as a truly autonomous agent within con-
temporary society. It recognises the significance of social interaction and the fact
that people’s choices and hence their autonomy are necessarily constrained by
the needs, preferences and reactions of others.53 The play also makes important
comments about the nature of suicide, especially calculated suicide, within the
context of terminal or incurable illness.
49 See for example, Airdale NHS Trust v. Bland [1993] 1 All ER 821, per Lord Goff at 866.
50 Secretary of State for the Home Department v. Robb [1995] 1 All ER 677, and R v. Ashworth
Hospital Authority ex patre Brady [2000] Lloyd’s Re Med 355, [2000] Med LR 251, provide exam-
ples.
51 B Clark, Whose Life is it Anyway? (New York, Dodd Mead, 1979).
52 Ibid, at 76–7.
53 See S Jinnet-Sack, “Autonomy in the Company of Others” in A Grubb (ed.) Choices and
Decisions in Health Care (Chichester, Wiley, 1993).

“Perhaps we ought to make suicide respectable again. Whenever anyone kills himself
there’s a whole legal rigmarole to go through . . . and it all seems designed to find
something to blame. Can you ever recall a coroner saying something like: ‘We’ve
heard all the evidence of how John Smith was facing literally insuperable odds and
how he made a courageous decision. I record a verdict of noble death?’ ”54
While Ken Harrison and his plight are fictional, a series of legal cases demon-
strate that his quest to autonomously determine the timing and circumstances of
his death are grounded in medical and social reality. There really are people who
are able to make autonomous decisions and would fervently desire to take their
own lives but are physically prevented from so doing by the nature of their dis-
ease. Others desire a clinical and certain suicide, so that they are assured that
there will be no mistakes and no return from the brink of death, but they can-
not achieve their goal without assistance. Carole Smith has discussed the ways
in which physical disability is often destructive of autonomy.55 By contrasting
the range of legal mechanisms formulated to protect the autonomy of those with
mental disability, with the poorly addressed issue of the impact of physical dis-
ability on people’s autonomy, she argues that a positive notion of autonomy is
required to enable people to act autonomously.
SUICIDAL INTENTIONS
Positively endorsing autonomy in this way might have a significant impact on

the law as it relates to assisted suicide. For example, Smith’s argument is highly
relevant to the 1993 case of Canadian born Sue Rodriguez,56 whose potential
physical disability would ultimately prevent her from taking her own life. In
essence Rodriguez argued that her autonomy and dignity were compromised,
not only by the Canadian Criminal Code, which prohibited assisted suicide, but
also by the physically disabling nature of her disease, which would prevent her
from independently taking her own life. She was competent to make an
autonomous choice that she wished to take her own life when she decided that
the time was right. But, in much the same way that the fictional Ken Harrison
could not accomplish his objective independently, she would by then be unable
to act upon it. Sue Rodriguez failed in the Supreme Court, where it was held that
the Criminal Code was not discriminatory, and that such fundamental decisions
should only be taken by the legislature.
54
B Clark, Whose Life is it Anyway? (New York, Dodd Mead, 1979) at 102.
55
C Smith, “Disabling Autonomy: The Role of Government, the Law, and the Family” (1997) 24
(3) Journal of Law and Society 421–39.
56
Rodriquez v. A-G British Columbia (1993) 107 DLR (4th) 342, [1993] 7 WWR 641. A detailed
analysis of the case is given in ch. 6 which emphasises Rodriguez’ contention that barring her from
receiving assisted suicide was destructive of her dignity.
In England, Annie Lindsell, brought a similar case before the courts in

October 1997.57 She too suffered from motor neurone disease and sought a legal
right to die by assisted suicide. It was her belief that she would want the oppor-
tunity to end her own life when she reached the terminal stages of her disease,
but that the nature of the disease would prevent her from acting. She therefore
wished her autonomy to be respected and her decision to be acted upon by
somebody else, preferably by her doctor. The case received a great deal of media
attention but was eventually dropped after Annie Lindsell received assurances
that she could legally be given any medication required to keep her comfortable
in the terminal stages of her disease, even if that meant her life would incident-
ally be shortened. She died in December 1997.
Legislative intervention of the type mentioned in the Rodiguez case would be
welcomed by advocates of permissive reform favouring death with dignity in
many jurisdictions, but to date only those in Oregon and Holland have demon-
strated an enduring commitment to this end. Australia’s Rights of the
Terminally Ill Act 1996, permitted medically assisted suicide in the Northern
Territory, but was overruled by the federal Parliament, after being successfully
employed by only four patients. Generally, assisted suicide remains prohibited
either by criminal law specifically, as demonstrated in the English and Canadian
cases, or constitutionally, as in the cases of State of Washington et al
v. Glucksberg et al and Vacco et al v. Quill et al,58 which were discussed in
chapter one.
Both common law and constitutional law are open to judicial interpretation
and the reluctance of the judiciary to intervene permissively in this area is read-
ily observed. For example, New York State’s ban on assisted suicide was chal-
lenged on the basis that it violated the Fourteenth Amendment’s Equal
Protection Clause, but was upheld based on the argument that anybody is per-
mitted to refuse treatment while nobody is entitled to assist suicide. Therefore
everybody is treated equally by the prohibition of assisted suicide. When com-
parisons are drawn with other rights, either constitutional or common law, judi-
cial interpretations of this nature can appear to result in an inconsistent
application of legal principles.
In America, the right to abortion is regarded as eligible for constitutional pro-
tection because it, “falls within the constitutionally protected sphere of liberty
requiring medical assistance”.59 The 1967 Abortion Act in Britain permits the
termination of pregnancy in a range of specified circumstances that can
be roughly equated to the protection of the health and well being of the preg-
nant woman and thereby protect her life and liberty. Neither physician assisted
57 The case is unreported, but see E Wilkins, “Dying Woman Granted Wish for Dignified End”
(1997) The Times, 29 October, 3.

58 Washington v. Glucksberg, Supreme Court 2258 (1997), Vacco v. Quill, Supreme Court 2293
(1997).
59 B Geobel, “Who Decides if There is ‘Triumph in the Ultimate Agony?’ Constitutional Theory
and the Emerging Right to Die with Dignity” (1995) 37 (2) William and Mary Law Review 827, at
879.
suicide, nor the termination of pregnancy can be achieved without the help of
medical professionals, and a perceived right to assisted suicide can be made out
on the understanding that unnecessary suffering may be avoided and self-
determination could be protected.
If, as has been claimed, the right to abortion represents a unique thread of
individual liberty and is justified by concerns for the woman’s suffering,60 how
can it be distinguished from claims for a right to assisted suicide founded on the
need to relieve individual suffering? What more unique expression of liberty and
self-determination could there be than the considered wish to die in order to
escape terminal suffering? One way to explain this apparent inequity might be
to consider the interests that are being protected.
Like the illusive right to die with dignity, the right to a pre-viability abortion
is often viewed as a right to terminate life, albeit a potential life rather than a
life in being. Here the interests of the living woman are protected by the law
and her liberty to make an autonomous decision to abort her pregnancy takes
priority over the unprotected “rights” of the unborn child.61 The entity that
“dies”62 has no legal rights and therefore no interests that the State can pro-
tect. The individual who dies as a result of assisted suicide possesses a right to
life, which the State considers worthy of a degree of protection. Although in
recent years suicide has been recognised more as, either an expression of self-
determination and individual autonomy, or the result of mental illness, the
criminal prohibition of assisted suicide is regarded as necessary to guard
against the potential for subversion of the right to self-determination. Suicide
itself does not ordinarily attract the attention of the criminal justice system
because of the absence of culpable mens rea, but even if the potential victim
seeks death, it is considered necessary to guard against the potential for unlaw-
ful killing that allowing assisted suicide might open up. Therefore, when a per-
son wants to kill herself and cannot do so without help, her adjutant is
regarded as a criminal accomplice and can be sentenced to a maximum penalty
of fourteen years imprisonment.63 Classifying assisted suicide as a criminal act
akin to unlawful killing is anomalous because it amounts to aiding and abet-
ting the commission of an action that is not in itself a crime, while aiding and
abetting, counselling and procuring are more usually regarded as the actions of
an accomplice who participates, to a greater or lesser degree, in the commis-
sion of a crime.
Of course there is a role for the criminal law in preventing people becoming
victims of malevolent intentions, for example where “vulnerable people who do
not desire death, despite their suffering, might be killed by others for reasons of
60 Planned Parenthood v. Casey, 112 S Ct 2791 (1992) at 2810–11.
61 The term “unprotected rights” is used here to express the lack of legal protection for the moral
rights of the unborn child which are recognised by some.
62 The word “dies” is used figuratively here to denote a comparison between the two concepts,
abortion and euthanasia. Legally of course an aborted foetus does not “die” in the literal sense of
the word, because it has never been born alive and hence has not lived.
63 Suicide Act 1961, s.2.
their own”.64 Such actions are of course harmful and should be prevented. But
where is the harm when assistance is provided at the voluntary request of a per-
son wishing to exercise an autonomous choice to die? Perhaps perversely, while
it may be difficult to identify harm to the person who dies, the present law might
indirectly offer a protection not generally envisaged.
People who are asked to assist in the suicide or euthanasia of a patient or
loved one, might feel compelled to comply out of loyalty or compassion, regard-
less of their own misgivings. Just as a patient might find her autonomy con-
strained by concerns about the impact of her actions upon others, so those who
care for her, either professionally or emotionally, may find their autonomy com-
promised by being asked to participate in, or condone, conduct that will result
in loss of life. Furthermore, any ensuing criminal investigation might give rise to
criminal culpability, the outcome of which may vary depending on the status of
the assistant. Andrew Ashworth has examined this area and theorises that there
may be some inequity in the legal response to those who assist suicide. He sug-
gests that, despite the legal prohibition, doctors who participate in assisted sui-
cide are more likely to receive a sympathetic response than friends and relatives,
who “must run the gauntlet of a legal process which affords no formal recogni-
tion to the circumstances under which they killed”.65 The consequences of the
legal prohibition on assisted suicide for clinicians may in fact be rather less obvi-
ous. Clinicians are used to exercising discretion in the conduct of their everyday
practice, but where end of life decisions are concerned, the ways in which judge-
ments are made and decisions implemented may be influenced by patients’ atti-
tudes and the law.
AUTONOMOUS CLINICAL DISCRETION
It is to be expected that doctors introduce their own value judgements into treat-
ment decisions so that clinical or technical decisions can become inherently
moral in nature.66 Frequently, therapeutic decision-making cannot be accomp-
lished without considering the wider social and moral environment within
which the decision is taken. Often such bias is introduced unwittingly and with
the kindest of intentions, and the implications for the exercise of patient auto-
nomy can be profound. Decisions to terminate a pregnancy, or not; to provide
contraception to an underage girl, or not; to confine a person suffering from
mental illness involuntarily, or not, are just a few examples of clinical situations
which cannot be considered in isolation from their social consequences. The
ramifications of treatment decisions like these dictate that they cannot, and per-
haps should not, be determined in a vacuum. But neither should they be unduly
influenced by the experience and morality of the clinician responsible for patient
64 A Ashworth, Principles of Criminal Law (Oxford, Oxford University Press, 1995) at 286.
65 Ibid.
66
I Kennedy, The Unmasking of Medicine (London, Paladin, 1983) especially ch. 4.
Autonomous Clinical Discretion 111
care at the expense of the need of the patient concerned to make an autonomous
decision. Yet if a deliberate decision to terminate life were under consideration,
how could a clinician trained to preserve life advise a patient dispassionately?
The patient’s need to make an autonomous decision and the clinicians’ profes-
sional judgement would almost certainly conflict.
Medical staff generally possess well-intentioned desires to provide the best
possible treatment regime and achieve the best possible outcome for their
patients. As a result, there are bound to be occasions when doctors feel “justi-
fied in going to great lengths to persuade a patient”,67 especially if the patient is
apparently too overwrought, afraid, and confused, to be competent to make an
autonomous choice. Determining what is best is always a subjective judgement
and patients are entitled to reach their own decisions, even if the choices they
make do not seem rational to medical staff or the disinterested onlooker.68 But
the biggest impact of any treatment decision is on the life of the patient receiv-
ing the treatment, so it should be for that individual to decide on the basis of her
own ethics, not those of her doctor, though the professional experience and
expertise of the doctor will provide valuable information upon which to base a
decision. Where tensions exist between the patient’s wishes and what clinical
judgement declares to be the best treatment option, the law of consent is
designed to provide the patient with a safeguard against medical paternalism. It
bears repeating that a competent patient has an absolute right to consent to or
refuse medical treatment, even if a refusal will lead to death, and where the
patient lacks the capacity to select an option the application of best interests cri-
teria is crucial to the decision-making process. It is in the evaluation of capacity
and the exercise of clinical discretion that the value judgements of medical prac-
titioners may conflict with those of the patient.
Clinical judgement is based upon the assessment and understanding of avail-
able medical data and the exercise of each physician’s expertise and experi-
ence.69 Doctors are in a unique position to evaluate the available information
and to make judgements about prognosis and potential therapies. They also
have responsibility for providing the patient with the information she requires
before she can give valid consent to any proposed treatment. The determination
of what information is relevant in order to make a rational decision about treat-
ment in any given clinical situation is therefore the prerogative of the medical
personnel concerned. Hence, the patient’s decisions about whether and which
treatment options to accept are inevitably governed by the amount of inform-
ation provided and the way it is presented. Whether or not any clinician is able
67
P D G Skegg, Law, Ethics, and Medicine (Oxford, Clarendon Press, 1988) at 98.
68
See Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649, where Lord Donaldson explained
that patients choices are not limited to those which others may regard as sensible or rational, at
652–3.
69
The practical problems associated with paternalism, beneficence and autonomy are discussed
at length by T Beauchamp and J Childress, Principles of Medical Ethics 4th edn. (Oxford, Oxford
University Press, 1989) at 271–290.
to offer independent neutral information knowing that the patient is choosing

to live or die is questionable.
DECIDING TO LIVE OR DIE — WHOSE DECISION ?
“[P]erfect autonomy, decisions taken without any defect at all either of information or
reasoning or of control, is, like any ideal, unattainable. But the fact that autonomy,
like many important and desirable things, is a matter of degree does not make it any
the less worth striving for, nor does it make it any the less important to have as much
of it as possible”.70
John Harris’s words succinctly identify the value of autonomy and the associ-
ated concerns that have been the focus of this chapter.
The right of every individual to make autonomous choices about the medical
care they receive, especially when life is ending, has been repeatedly endorsed as
an absolute right, but the examples shown here demonstrate that it is often a
highly contingent right. As a counter measure patients presented with treatment
choices at the end of life must be provided with sufficient information upon
which to base their decisions so that they are able to act autonomously, accord-
ing to their own will and ensure that their selections are meaningful.
“To make an optimally informed choice, patients require active help . . . when, for
whatever reason, they are confused or think they know more than they do, the duty
not to coerce in the long term tells doctors little about how to help them to be more
critically autonomous in the short term”.71
Clearly the ability to enhance patient autonomy requires more than simply the
provision of information in a way that says, here are the options, now make
your choice.72 “There is no such thing as informed consent unless there is equal
knowledge”,73 choices must be presented and autonomy encouraged without
sacrificing the decision-maker to her autonomy.
Many have rightly argued that “the law relating to consent pays little more
than lip service to patient autonomy”74 so autonomy presently extends only as
far as legal and medical paternalism allows it to. Given the complexities of the
medical decision-making environment this appears unavoidable, although, in
the context of consent to treatment, some western jurisdictions are committed
to upholding autonomy and extending patient choice.75 Two reasons explain
70 J Harris, The Value of Life (London, Routledge, 1985) at 200.
71 L Doyal, “Medical Ethics and Moral Indeterminacy” (1990) 17 (1) Journal of Law and Society
1, at 12.
72 F J Inglefinger, “Arrogance”, (1980) 303 New England Journal of Medicine, 1507–11.
73 The words of Professor Max Hamilton cited in, C Pritchard, Suicide—The Ultimate Rejection
(Buckingham, Open University Press, 1995) at 166.

74 M Brazier, Medicine, Patients and the Law (London, Penguin, 1992) at 92.
75 K Tickner, “Rogers v. Whitaker—Giving Patients a Meaningful Choice” (1995) 15 (1) Oxford
Journal of Legal Studies 110 at 118, suggests that this is the case in Australia, Canada, New Zealand
and more than half of the jurisdictions of North America.
Deciding to Live or Die – Whose Decision? 113
why stressing patient autonomy alone fails to provide a solution. Firstly, patient
autonomy will always be contingent upon clinical and judicial discretion and
interpretation, at least for some. And secondly, were legislative support for
assisted dying to be introduced in order to enhance patient autonomy, it would
certainly be to the detriment of significant numbers of clinicians who would
regard it as a challenge to their professional and moral integrity. The central
tenet of medical ethics is first do no harm, but providing a patient with the
means to kill herself clearly contravenes this ethic. Anecdotal evidence suggests
that many of the Dutch doctors who have assisted with suicide do so only once
because of the trauma involved, and it has been postulated that doctors some-
times feel like “a victim of the social and cultural circumstances in which the
medical treatment of the patient takes place”.76 Hence, if assisted suicide were
to be permitted as a means of enforcing patient autonomy doctors would need
to be enabled to exercise their own autonomous choice not to participate if they
so desired, particularly where participation is regarded as undignified.
The task of protecting the autonomy of all parties is not an easy one. It is evi-
dent that:
“attempts to provide uniform guidelines for treating patients as persons, respecting
their autonomy and avoiding unacceptable medical paternalism are bound to be
insensitive to the radical differences of capacity of different patients”.77
Combine this with the inevitable emotional and clinical tensions that will arise
when a patient embarks on a course that will result in death and, in an imper-
fect world, autonomy may be aspired to but never achieved.
Multiple reforms are required if autonomy at the end of life is to be effectively
promoted, but this may need to be achieved incrementally. Clinical and judicial
respect for autonomous decisions must be strengthened, initially by permissive
reform allowing for greater recognition and promotion of living wills. Were
assisted death to become legally permissible, the formulation of adequate
safeguards to ensure that it was performed only after careful consideration and
at the repeated voluntary request of the recipient would protect against abuse.
But, while assisted suicide continues to be outlawed, many people’s measured,
autonomous decisions to kill themselves will be nullified by the absence of the
physical autonomy to act for themselves. It is not enough however for law and
medicine to simply insist that we’ll save you, or prevent you from acting now so
that you can go away and reflect. Like countless women who seek abortions
only to have their decisions questioned once they enter the medical arena, most
of those who contemplate euthanasia or assisted suicide will already have
reflected and considered their options before settling on their final choice. Their
autonomy will be seriously compromised by doubt and delay, as will their
76 W Grey, “Right to die or duty to Live? The Problem of Euthanasia” in D Dickenson et al (eds.),
Death, Dying and Bereavement 2nd edn. (London, Sage, 2000) 270–283 at 280.
77 O O’Niell, “Paternalism and Partial Autonomy” (1984) 10 Journal of Medical Ethics 177.
dignity. Perhaps an immediate way forward is to promote greater recognition of

and respect for living wills, so that people’s considered choices could be upheld
without being distracted by the imminence of death. Dignity in dying through
the exercise of autonomous choice might then be a real possibility.
5
Living Wills and the Will to Die
INTRODUCTION
The concept of the living will or advance directive, originated in America1 and
is now gaining currency in most Western countries as a device that can enable
people to retain control of their lives until they die. Where a person anticipates
that she will become incapable of any form of medical decision-making, a living
will can provide an opportunity to make known her aspirations regarding the
type and extent of medical treatment she finds acceptable. Through a living will,
decisions about future treatment can be taken in consultation with medical pro-
fessionals before the treatment is required and while the person concerned still
has the mental capacity to decide for herself. Family and friends can be included
in the decision-making process so that the patient’s wishes are clearly under-
stood, and decisions can be anticipated by all concerned. Thus, even if the hypo-
thetical patient depicted earlier remains unconscious and unable to
communicate, her concerns and opinions can be made known to her clinicians
and acted upon.
Usually a living will is thought of as a statement indicating a person’s preferred
treatment options at the end of life, but the term “living will”2 is also “sometimes
used for advance directives which are concerned with other situations or which
can be used to express a willingness to receive particular treatments”.3 Some stip-
ulate that specific treatments are acceptable while others are not,4 while others
insist that all available appropriate medical resources should be utilised to main-
tain life.5 Living wills are not therefore exclusively associated with end-of-life
decisions, although generally the purpose of a living will is to promote individ-
ual autonomy and choice for the patient; characteristics which have long been
associated with euthanasia as a means of achieving death with dignity.
1 Living wills have been recognised by statute in America since the introduction of the Natural
Death Act in California in 1976, and in South Australia since the Natural Death Act 1983. In the USA
the Patient Self-Determination Act 1990 now requires that all federally funded hospitals in America
advise their patients of their right to make a living will.
2
Note that living wills are also variously described and defined as advance directives, advance
declarations and anticipatory decisions about medical treatment.
3
The Law Commission Consultation Paper No 129, Mentally Incapacitated Adults and Decision
Making: Medical Treatment and Research (London, HMSO, 1993) at 29, n18.
4
For example, The Watch Tower: Bible and Tract Society of Pennsylvania issues a directive for
use by its members that states that the transfusion of blood and blood products is refused in all cir-
cumstances, but the administration of non-blood volume expanders such as saline and Ringer’s
solution is acceptable.
116 Living Wills and the Will to Die
Some people make living wills because they would prefer a quick dignified
end to protracted dying and therefore wish not to be kept alive once any hope
of cure or improved quality of life is lost. Some simply want to spare their loved
ones the potential trauma of having to make life-limiting medical decisions on
their behalf, or having to sanction such decisions made by clinicians. Similarly,
a person may prepare a living will in order to avoid adding to the distress of
loved ones who might otherwise have to care for her during a lengthy period
of physical deterioration.6 Alternatively she may object to the prolongation of
futile treatment, perhaps because of a sense that the resources needed to delay
her inevitable death could be better used for people with more optimistic prog-
noses. Regardless of the motivation for formulating a living will those who do
so expect that their decisions will be respected in the appropriate circumstances.
Whether this is a legitimate expectation is the subject of this chapter.
Preceding chapters described how every competent adult has a legal right to
give or withhold consent to treatment. Founded upon respect for individual
autonomy this is a right that operates through the law of consent to protect
patients from unfettered medical paternalism.7 Common law holds that patients
with the capacity to give consent are also competent to refuse or withhold con-
sent, “even if a refusal may risk personal injury to health or even lead to prema-
ture death”.8 Furthermore, a “refusal of treatment can take the form of a
declaration of intent never to consent to that treatment in the future, or never to
consent in some future circumstances”.9 Accordingly, any consent or refusal of
consent made by a competent adult patient can also be valid in respect of the
same treatment at any time in the future. However, in so far as these protections
exist, they are available only to those who have the capacity to express their
desires by giving, or withholding, their consent.10
Ordinarily the mental capacity necessary for full participation in an inter-
active decision-making process develops with maturity, but mental handicap,
mental illness, or trauma may prevent its acquisition. A person who gains capa-
city on achieving the age of majority may subsequently lose it through, trauma,
5
See the Terrence Higgins Trust and King’s College London, Living Will (2nd edn.) in
M Molloy, V Mepham, Let Me Decide (London, Penguin, 1993).
6
R Pearlman, K Cain, D Patrick, M Appelbaum-Maizel, H Starks, N Jecker, R Uhlmann,
“Insights Pertaining to Patient Assessments of States Worse than Death”, in L Emanuel (ed.)
Advance Directives: Expectations, Experience and Future Practice (1993) 4 (1) Journal of Clinical
Ethics 33.
7
But see, Sally Sheldon, “Subject Only to the Attitude of the Surgeon Concerned: The Judicial
Protection of Medical Discretion” (1996) 5 (1) Social and Legal Studies 95, which suggests that in
many clinical situations, perhaps most notably those concerning women’s reproductive rights, med-
ical paternalism appears to remain unfettered and is frequently upheld by the courts.
8
Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649, per Lord Donaldson at 653.
9
Law Commission Report 231, Mental Incapacity, Item 9 of the Fourth Programme of Law
Reform: Mentally Incapacitated Adults (London, HMSO, 1995) para 5.2, at 65–66. Re C (Adult:
Refusal of Treatment) [1994] 1 WLR 290.
10
Chs. 3 and 4 provide background and insights into the legal status of the right to give and with-
hold consent. See also J Montgomery, “Power Over Death: The Final Sting” in R Lee, D Morgan
(eds.) Death Rites: Law and Ethics at the End of Life (London, Routledge, 1996) 37–53, at 37.
Introduction 117
degenerative disease, or mental illness resulting in temporary or permanent

incapacity. Here a person who was once competent to make decisions will no
longer have the capacity so to do. In these circumstances a properly executed liv-
ing will can serve to express the views of the person concerned despite her inabil-
ity to communicate them herself. Hence, capacity is crucial to assessing the
validity of a persons consent or refusal to consent both at the time the decision
is made and when the treatment becomes necessary.
The special mechanisms designed to legitimate the provision of medical treat-
ment in the absence of consent from the patient were described in chapter three,
and, in summary, these allow treatment to be administered if it is medically nec-
essary and in the patient’s best interests.11 Consequently incapacitated patients
are not ordinarily afforded the luxury of participation in the decision-making
process. So, even though no person has authority to consent on behalf of
another, these patients effectively become the object of decisions made about
them by others, rather than interested contributors. In these circumstances liv-
ing wills become relevant because they can help those who once were competent
to maintain some control over treatment decisions.
Living wills can take a variety of different forms. They may encompass gen-
eralised expressions of the patient’s desires, or include anticipatory decisions
about specific prospective therapies but their authority does not extend to
requests or demands for treatments that are not clinically indicated.12
“[W]here a doctor has formed a reasonable and responsible clinical judgement that
treatment is not called for, the law will not second-guess him by ordering him to pro-
vide the treatment”.13
So a reasonable medical judgement that a certain treatment regime is inappro-

priate, cannot be overridden by interjection from the patient or anyone else,
even if it is stipulated in a living will. Nonetheless patients and their represent-
atives may form the impression that any requests for treatment made within a
formally executed living will must be complied with. Doctors, on the other
hand, have expressed concerns that they may be required to perform treatments
specified in a patient’s advance directive which are contrary to their clinical
judgement, or even against the law.14 Both viewpoints are clearly misinformed
and have been described by the Law Commission as “another example of exces-
sive influence being attributed to the fact that ‘advance directives’ are often writ-
ten down and signed”.15
11 Re F (Mental Patient : Sterilisation) [1990] 2 AC 1, [1989] 2 All ER 545 (HL).
12 See Re J (A Minor) (Wardship: Medical Treatment) [1992] 4 All ER 614 (CA), where the court
refused to insist that a doctor should treat a child in a way that was contrary to clinical judgement.
See also, R v. Secretary of State for Social Services ex p Hincks [1992] 1 BMLR 93.
13 I Kennedy, A Grubb, Medical Law: Text with Materials 2nd edn. (London, Butterworths,
1994) at 1278.
14 The Law Commission Consultation Paper No 129, Mentally Incapacitated Adults and
Decision Making: Medical Treatment and Research (London, HMSO, 1993) para 3.12.
15 Law Commission Report 231, Mental Incapacity, Item 9 of the Fourth Programme of Law
Reform: Mentally Incapacitated Adults (London, HMSO, 1995) para 5.6, at 66–67.
Regardless of misconceptions like these a living will whose provisions will

lead to the death of a patient who is terminally ill, or incurable and inevitably
dying, is likely to generate relatively few ethical and medical dilemmas.
However, sometimes patients use advance directives to refuse treatments, not
because of a wish to die, but because their beliefs about the therapy and its reli-
gious, philosophical or practical consequences make that treatment undesirable
to them, even if refusal means death. Examples include advance refusals of
blood transfusion or particular types of surgical intervention necessary to pre-
serve life, where the treatment could, if given, restore health and prolong life.
Here tension is created between respect for the individual’s autonomy and the
medical imperative to do no harm and restore health wherever possible. As a
consequence the law concerning the applicability and validity of living wills is
largely informed by cases defining the scope of advance directives and anticipa-
tory decisions that do not directly refer to terminal care, and these will provide
a focus for much of this discussion.
Living wills are often promoted as a mechanism through which autonomy
can be safeguarded in order to provide dignity in dying. Whether or not such
claims are legitimate depends largely on the forms living wills take, how widely
they are recognised and used and the legal response to them. In individual cases
it may also depend on whether they have been drafted clearly enough to uphold
the patient’s particular wishes hence their practical significance and legal stand-
ing will be examined through a discussion of when they become operative and
the factors that determine their scope and validity. Finally the responsibilities of
health care professionals to patients who have composed living wills will be con-
sidered so that some conclusions may be drawn about their effectiveness in pro-
tecting autonomy and choice, and providing death with dignity.
I KNOW MY WILL
The form and content of living wills varies enormously depending on the inten-
tions of the person designing them and their desired outcome. Distinctions can
be drawn between those decisions that favour particular types of treatment, and
others, which effectively withhold consent in opposition to specific therapies.
The Terrence Higgins Trust has formulated an interesting example of a living
will that incorporates both elements. Included are the statements,
“I wish to be kept alive for as long as reasonably possible using whatever forms of
medical treatment are available.”
and “If I become permanently unconscious with no likelihood of regaining con-

sciousness, I wish medical treatment to be limited to keeping me comfortable and
free from pain, and I REFUSE all other medical treatments”.16
16
The Terrence Higgins Trust and King’s College London, Living Will (2nd edn.) in M Molloy,
V Mepham, Let Me Decide (London, Penguin, 1993).
I Know My Will 119
Clearly this advance directive is designed to meet the needs of a particular group
of users, specifically those suffering from the terminal stages of AIDS, who seek
to prolong life for as long as there is hope but not once treatment becomes futile.
Being constituted as a formal document evidenced in writing, it is not typical of
all advance directives, since many take the form of informal oral statements out-
lining the intentions of the person concerned. As such they may represent anti-
cipatory decisions about specific forms of treatment, or perhaps constitute an
expression of personal preferences and opinions regarding future therapy.
The variability of content and form of advanced health care declarations has
proven problematic in America, where living will legislation was originally
designed only to enable people to forgo life-sustaining medical care in their final
days and die unencumbered by intrusive medical technology. In practice many
statutes were too limited in their application allowing only those who were
diagnosed as terminally ill to gain the protection of living wills. Additionally the
phrase “terminally ill” was often defined so narrowly that many people died
before completing the required waiting period between being diagnosed as ter-
minally ill and signing their living will. Seemingly however, the greatest diffi-
culty was that many people wanted to give power of attorney to others who
could then make health related decisions for them; a solution not easily achieved
within existing legal frameworks. Recent legislation has therefore combined the
provisions in the living will and the enduring power of attorney statutes and
twenty states have now enacted measures enabling family members to make
health care decisions even if the patient has no advance directive. Here the
expectation is that a living will designed to delegate decision-making power to
others means the proxy will use personal knowledge about the patient’s convic-
tions and beliefs to inform their decisions, and that the outcome will be in keep-
ing with the patient’s own principles.17 Although this sounds like an ideal
solution for a patient who wants to be certain that the provisions contained in
her living will are upheld, the practice and theory may diverge.
Will You Decide? Proxy Decision-Making
Unlike other jurisdictions English law does not recognise substituted judgement
or facilitate the giving or withholding of consent by anyone other than the
patient herself.18 Treatment decisions concerning incompetent adults will ordi-
narily be made according to the application of best interests criteria, as they
would for minors or those of adult years who never attained competence, and
the views of significant others, including anybody who had been appointed as a
proxy decision-maker, can be considered in the assessment of the patient’s best
17 This pattern is being reflected in Canada and Australia and a British example can be seen in
the advance directive drawn up by the Voluntary Euthanasia Society 13, Prince of Wales Terrace,
London W8 5PG (1995).
18 Ch. 3 discusses the concept of substituted judgement and its application.
interests.19 Indeed, the Law Commission recommended that others should be

consulted where it is “appropriate and practicable”,20 but case law demon-
strates that their views will not be decisive.21
Strengthening the role of proxy decision-makers would require significant
legal reform, which Andrew Grubb considers to be “beyond the role of the
courts and could only be done by Parliament”.22 At present the Enduring
Powers of Attorney Act 1985, allows those with power of attorney to continue
to administer the affairs of a person after she has lost mental capacity. Medical
treatment decisions are however excluded from the scope of the Act so that
advance directives appointing proxy decision-makers are presently limited in
their application.
The Law Commission considered the issues surrounding the appointment of
continuing power of attorney in conjunction with advance directives and rec-
ommended it as an alternative strategy for medical decision-making.23
Subsequently the Government set up a public consultation entitled Who
Decides?24 to consider a range of options for reform, including legislation on liv-
ing wills and the use of a medical power of attorney. That was followed by a
White Paper, Making Decisions25 proposing to enable adults to draw up con-
tinuing powers of attorney, to appoint friends or relatives to make health care
decisions and to introduce a modern Court of Protection to take health care
decisions in appropriate circumstances.
Apparently then proxy decision-making is soon to be possible in this juris-
diction, but will it enhance individual patient autonomy and promote dignity at
the end of life? People may feel more secure in the knowledge that somebody
they trust will be deciding for them but the substance of the decisions taken is
surely of greater import than who ultimately takes them. How can anybody be
sure that their proxy will decide as she would herself, and could those responsi-
ble for patient care verify that the decisions made by the proxy were in keeping
with the views of the incompetent patient? Carers, whether professional or vol-
untary, usually favour treatment that corresponds to their own understanding
of the best interests of the patient. This ethos may strongly conflict with deci-
sions made by a proxy, particularly if the proxy is inclined towards a course of
treatment, or non-treatment, which will culminate in the death of the patient. In
a sense this is the best possible solution if it means that the views of the patient
19
See Airedale NHS Trust v. Bland [1993] 1 All ER 821, [1993] 2 WLR 316, and Re T (Adult:
Refusal of Treatment) [1992] 4 All ER 649, and ch. 4.
20
Reform: Mentally Incapacitated Adults (London, HMSO, 1995) para 3.33–3.36, and Clause 3(1) of
the draft Bill.
21
Re G (Persistent Vegetative State) [1995] 2 FCR 46, at 51.
22
A Grubb, “Commentary on Re T (Adult: Refusal of Treatment) (1993) 1 Med LR 83, at 87.
23
Reform: Mentally Incapacitated Adults (London, HMSO, 1995) para 7.1.
24
Lord Chancellor’s Department, Who Decides? Making Decisions on Behalf of Mentally
Incapacitated Adults (London, HMSO, 1997) Cm 3808.
25
Lord Chancellor’s Department, Making Decisions (London, HMSO, 1999) Cm 4465.
This is My Will 121
will be strongly represented in opposition to those of the professional carers,

because, assuming that accords with the patient’s desires, autonomy will be
maximised in this. But what if the proxy fails to fight the patient’s corner, or
superimposes her own, different, opinions on to those of the patient? Where is
the patient’s autonomy then?
Furthermore, what happens if the patient, though now technically incompe-
tent, denies the authority of the proxy to decide for her, or challenges the effi-
cacy of the proxy’s decisions? How can valid treatment decisions be made in
such circumstances? The appointment of a proxy decision-maker in a living will
might appear to be the perfect way to ensure that life ends in a way that reflects
the dignity of the way it was lived but less complex provisions, like clearly artic-
ulated anticipatory decisions, may be more successful. It is therefore vital to
ensure that the form of a living will reflects the needs of its author and is suffi-
ciently authoritative that its provisions will be upheld.
THIS IS MY WILL
The simplest form of advance directive is a statement made by a competent per-

son in respect of medical treatment that will occur in the future rather than con-
temporaneously. Kennedy and Grubb therefore correctly assert that the
commonest form of advance directive is the surgical consent form, which takes
the form of an anticipatory decision about future surgical intervention.26 This
kind of anticipatory decision is designed largely as a means of protecting med-
ical professionals from legal action by authorising in advance the physical con-
tact involved in medical treatment. Advance directives taking the form of
properly executed and exercised anticipatory decisions or declarations tend to
be uncontroversial and unremarkable, but this is not always the case.
Early examples of living wills tended to focus on avoiding being subjected to
heroic medical interventions or cardiopulmonary resuscitation, designed to save
and prolong life at all costs. Observance of the provisions included in these
directives usually culminated in immediate death. More contemporary
approaches to end-of-life decision-making have seen the development of less
precisely worded advance directives, a good example of which is the living will
formulated by the Voluntary Euthanasia Society (VES).27
Here a detailed schedule is provided of the kinds of medical conditions that
should trigger the operation of the directive when the signatory is unable to
speak for herself. These include, advanced disseminated malignant disease,
severe immune deficiency, advanced degenerative disease of the nervous system,
26 I Kennedy, A Grubb, Medical Law: Text with Materials 2nd edn. (London, Butterworths,
1994) at 1325.
27 Published by The Voluntary Euthanasia Society, 13 Prince of Wales Terrace, London W8 5 PG
(1995).
severe and lasting brain damage due to injury, stroke, disease or other cause,
senile or pre-senile dementia and any other condition of comparable gravity.
Although detailed, the list exhibits a degree of uncertainty about exactly
when the provisions of the living will come into force, and each element allows
for clinical discretion in determining when the advance directive should be
implemented. There is, for example, no precise clinical definition of when dis-
seminated malignant disease, or degenerative disease of the nervous system
becomes advanced, or how extensive brain damage or immune deficiency must
be before it is classified as severe. “Any other condition of comparable gravity”
is similarly imprecise. In practice these apparently minor interpretative discrep-
ancies could result in a failure to safeguard the patient’s wishes and may become
a source of discord between the patient’s clinicians and representatives. To help
avoid undignified disputes developing and resulting in failure to respect the
patient’s choices, the VES living will also includes a declaration designed to
assist in the interpretation of the schedule. It explains that, if the author
becomes unable to participate in medical decision-making while suffering from
any condition described in the schedule, and is, in the opinion of two medical
practitioners, unlikely to recover, then she should not be subjected to any med-
ical intervention or treatment aimed at prolonging or sustaining life. Further
clarification is provided by the insistence that:
“any distressing symptoms (including any caused by lack of food or fluid) are to be fully
controlled by appropriate treatment, even though that treatment may shorten [my] life”.
Perhaps most importantly the VES living will also contains a compelling state-
ment of opinions and intentions, which states,
“I wish it to be understood that I fear degeneration and indignity far more than I fear
death. I ask my medical attendants to bear this in mind when considering what my
intentions would be in an uncertain situation”.
The emphasis on the fear of “indignity” and “degeneration” as being inherently
less desirable than death demonstrates that the bearer of the document would
choose death over a life considered undignified or one where the ability to function
has been reduced by “degeneration”. Whether “indignity” has been sufficiently
explained or is in fact a concept that can be widely applied without extensive clar-
ification is questionable, since dignity itself is generally poorly defined. But the
statement can be regarded as indicative of the author’s general preferences and is
therefore in line with arguments put forward by many commentators about the
importance of “value histories”28 in medical decision-making.
The VES also supplies a medical emergency card that functions in a similar
way to the organ donors card, and is designed to operate in conjunction with the
28 J Gibson, “Values History Focuses on Life and Death Decisions” (1990) 5 Medical Ethics 1,
P Lambert et al, “The Values History: an Innovation in Surrogate Medical Decision-Making” (1990)
18 Law Medicine & Health Care, 202, C Docker, “Living Wills/Advance Directives” in S A M
McLean (ed.) Contemporary Issues in Law, Medicine and Ethics (Aldershot, Dartmouth, 1996) 179,
C Docker, “Decisions to Withdraw Treatment” (2000) 320 British Medical Journal 54.
This is My Will 123
living will. The card incorporates the patient’s signature, some medical inform-
ation, the name of the next of kin, and details of where the advance directive is
lodged. Individuals carry the card with them in case they require emergency
treatment and are unable to express their wishes at the time. The reader of the
card is advised that the individual named does not wish resuscitation or artifi-
cial prolongation of life, if there is no “reasonable prospect of recovery”.
However, these apparently self-explanatory provisions may in practice be of
limited value in a genuine medical emergency.
Physicians are trained to react to emergencies with speed and skill. Their
strategy is usually confined to overcoming the initial crisis and observing the
therapeutic duty of care owed to the patient. For these reasons scant attention
may be paid to whether in the long term the patient has a “reasonable prospect
of recovery”. Managing an emergency situation requires different skills from
those necessary for accurately assessing prognosis and recovery. Such assess-
ments are neither practically feasible nor appropriate in the emergency room
where the clinical emphasis is on immediate resuscitation and stabilisation.
The phrase “reasonable prospect of recovery” itself allows for a variety of
interpretations, since recovery is a value-laden assessment. Some people con-
sider the prospect of recovery with full mental capacity but physical disability
unreasonable and undesirable, while others would tolerate, even relish, physical
survival, despite the impairment of cognitive function. Similarly, does the
prospect of recovery need to be reasonable or the recovery itself? Without a sub-
jective understanding of what constitutes a reasonable prospect of recovery for
the person concerned those responsible for the provision of medical care are
bound to exercise a wide discretion, the result of which may not accord with the
patients intentions in the circumstances.
Despite these shortcomings, the living will of the Voluntary Euthanasia
Society is likely to be as effective in practice as any advance directive can be. The
document takes a legalistic form, incorporating a formal declaration to be
signed by two witnesses. It makes provision for updating, confirmation of its
applicability and for its revocation. Signatories are also urged to discuss the stip-
ulations within the directive with their general practitioner and to lodge a copy
of it at their doctor’s surgery. These provisions offer the maximum possible
security that the desires espoused within the advance directive will be acted
upon at the appropriate time.
However, not all living wills are made in writing or as formally as the VES
example, nor need they be. A verbal declaration of a patient’s opinions and
wishes can be equally influential in determining future medical care. In its
Report No 231, Mental Incapacity, the Law Commission of England and Wales
was anxious to stress the importance of both written and oral advance health
care statements, as expressions of individual preferences and value systems.29
29
Despite this, unless oral statements are recorded in such a way that all those
responsible for the provision of medical care to the patient are aware of their
existence and validity, their practical value is bound to be limited. They are nec-
essarily less easily evidenced and therefore less readily confirmed as valid and
applicable.
If, for example, a patient explains her wishes and preferences regarding future
medical care in a particular set of circumstances, she is reliant on those wishes
being accurately recorded and made available to others who might subsequently
become responsible for her care. Such a statement made to a general practitioner
would probably have greater impact than if it were made to a friend or family
member but only if it were recorded and readily accessible to other medical per-
sonnel. The American case of Cruzan v. Missouri Department of Health,30
clearly illustrates this point. The judgment held that, while a patient’s wishes
should be respected in order to uphold self-determination, “clear and convinc-
ing” evidence was required, before such views could be acted upon. Here only a
formally executed living will was considered sufficiently authoritative for this
purpose. Hence a person who wants her living will to be decisive should perhaps
take all practicable steps to formalise it, especially where it anticipates specific
medical circumstances and expresses what action should be taken. Couching a
living will in such terms effectively anticipates future clinical events, what deci-
sions might be taken and dictates whether or not the author consents.
Anticipatory decisions relating to the acceptance of treatment where consent is
given in advance have generally not been regarded as problematic. Advance
decisions refusing consent to specific kinds of treatment which, in the unfolding
medical situation would lead to the patient’s death, have however prompted
intense legal and ethical debate.
The legal status of anticipatory decisions in Britain has been informed by sev-
eral leading cases, but these cases have tended to be confined to the discussion
of the status of anticipatory decisions in general, rather than with the operation
of living wills specifically related to end of life decisions.31 For example, in Re T
Lord Donaldson MR explained that:
“an adult patient . . . has an absolute right to choose whether to consent to medical
treatment, to refuse it or to choose one rather than another of the treatments being
offered”.32
And these sentiments were reiterated in Bland where Lord Keith said:
“. . . a person is completely at liberty to decline to undergo treatment, even if the result
of his doing so will be that he will die”.33
30
110 S Ct 2841 (1990) (US Supreme Court).
31
Re T [1992] 4 All ER 649, Re S [1992] 4 All ER 671, and Re MB (Medical Treatment) [1997] 2
FLR 426, all concerned pregnant women who declined particular types of treatment. Airedale NHS
Trust v. Bland [1993] 1 All ER 821, and Re C [1994] 1 WLR 290, specifically discussed advance direc-
tives with potentially life-limiting consequences.
32
Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649, per Lord Donaldson at 653.
33
Airedale NHS Trust v. Bland [1993] 1 All ER 821, at 860.
This is My Will 125
Whilst these judgments apparently confirm the validity of anticipatory decisions

where the individual concerned was competent to consent to treatment at the
time of their formulation, the outcomes of the cases often belie the effectiveness
of substantively valid anticipatory decisions. For example, in Re T the general
efficacy and importance of valid advance decisions was revered, but T’s own
advance decision was overruled.
In line with this it is clear that only anticipatory decisions appertaining to the
particular circumstances of the patient’s condition will be valid. If specific treat-
ments are refused in advance, but there is no evidence that the patient was aware
when she made her decision that death would result from the circumstances that
have subsequently arisen, then the refusal will be invalid.34 For example, a patient
may refuse a blood transfusion when she is agreeing to undergo a minor opera-
tion, knowing that blood transfusions are not normally necessary for this proce-
dure. She may not anticipate that blood could become essential to save her life due
to unforeseen complications of the surgery. In this case the advance refusal will
not be valid because it does not apply to the situation that has developed.
Similarly the effectiveness of a living will, as a mechanism for enhancing patient
autonomy, might be significantly impaired if the provisions within it are couched
too generally. Andrew Grubb addresses the issue in his discussion of Re T,
“the requirement in Re T that the patient be as specific as possible may well mean that
a ‘living will’ is less comprehensive than would be a general statement of the patient’s
wishes. Provided that the specific situation contemplated arises, there is no legal prob-
lem . . . If a different situation arises, however, the ‘living will’ may miss the mark and
the patient’s more general intention to, for example, forego life-sustaining treatment
will be frustrated”.35
It seems that a living will containing anticipatory decisions that are either too
general or too specific could be considered inapplicable. Acknowledging this as
a point for concern Jonathan Montgomery has protested that:
“the law represents that they [patients] may choose to die, but allows this power over
their dying to be withheld from them at the very point at which its exercise is
sought”.36
Various methods of overcoming this problem were considered by the Law

Commission, which concluded that primary legislation would be unlikely to
succeed, while:
“the technique (adopted by the THT/King’s College model form) of referring to treat-
ments with particular purposes rather than any particular treatments may be one way
of avoiding some of the difficulties”.37
34 Re T [1992] 4 All ER 649.

35 A Grubb, “Commentary on Re T (Adult: Refusal of Treatment), (1993) 1 Med LR 83, at 87.
36 J Montgomery, “Power Over Death: The Final Sting” in R Lee, D Morgan (eds.) Death Rites:
Law and Ethics at the End of Life (London, Routledge, 1996) 37–53, at 39.

One further important issue, relating specifically to women, and created by the
tension between the dicta of Re C,38 endorsing the validity of anticipatory de-
cisions, and Re S,39 and subsequent obstetric cases,40 concerning a contem-
poraneous decision to refuse consent for a Caesarean section, cannot be so
easily resolved.
In a ruling that has been widely discredited,41 S’s decision to refuse treatment
was overruled because of the imminent danger to the life of her unborn child.
Protection of the interests of unborn children was thereby afforded greater
importance than respect for the autonomy of pregnant women. Following Re S,
it seemed likely that any anticipatory decision with life-limiting implications
could be legitimately invalidated, simply because the author was a pregnant
woman. Advocates of patient autonomy, like the Law Commission greeted the
judgment with considerable unease,
“we do not, however, accept that a woman’s right to determine the sorts of bodily inter-
ference which she will tolerate somehow evaporates as soon as she becomes pregnant”.42
Re S and similar judgments, encourage the interpretation that any advance
directive relating to a pregnant woman, would be invalid, unless it specifically
addressed the circumstances in question, notably her pregnancy.43 Therefore,
the Law Commission recommended that
“Women of child bearing age should . . . be aware that they should address their minds
to this possibility if they wish to make advance refusals of treatment”.44
Women of child bearing age and pregnant women are thereby distinguished as a
separate class to whom special rules relating to the formation, application and
validity, of advance directives will apply.45 The effect on advance directives of
38 [1994] 1 All ER 819.
39 [1992] 4 All ER 671.
40
See for example, Re L (An Adult: Non-consensual Treatment) [1997] 1 FCR 60, and Re MB
(Medical Treatment) [1997] 2 FLR 426.
41 D Morgan, “Whatever Happened to Consent?” (1992) 142 New Law Journal 1448,
J Bridgeman, “Medical Treatment: The Mother’s Rights”, [1993] Fam Law, 534, I Kennedy and
A Grubb, Medical Law: Text with Materials 2nd edn. (London, Butterworths, 1994) at 359,
M Thomson, “After Re S” (1994) 2 Med LR 127.
43
The American case of Werth v. Taylor (1991) 474 NW2d 426 (Mitchigan CA) where a preg-
nant patient, Cindy Werth, brought an action in battery against Dr Taylor when he failed to respect
her advance directive not to transfuse blood, similarly illustrates the controversy. Here under dicta
taken from In Re Estate of Dorone 517 pa3, 543 A 2d 452 (1987) it was held that, “. . . in a situation
. . . where there is an emergency calling for an immediate decision, nothing less than a fully conscious
contemporaneous decision by the patient will be sufficient to override evidence of medical neces-
sity”. And “. . . without contemporaneous refusal of treatment by a fully informed, competent adult
patient, no action for battery lies”.
44
45
Similar distinctions have been included in other models for living wills, for example, the first
legislative provision for living wills, the Natural Death in California Act 1976 and Age Concern
Institute of Gerontology and Centre of Medical Law and Ethics King’s College London, The Living
Will: Consent to Treatment at the End of Life (London, Edward Arnold, 1988) at 60.
This is My Will 127
subsequent dicta in Re MB,46 confirming that there is no jurisdiction to balance

the interests of a foetus against those of a competent pregnant woman, remains
uncertain since it hinges on the assessment and demonstration of maternal
competence.47
Furthermore, the Law Commission’s Draft Bill includes the general recommend-
ation that, unless there are contrary indications, a presumption will operate that an
anticipatory refusal of treatment does not apply if it threatens the life of the author
or, if the author is a pregnant woman, if it threatens the life of her unborn child.48
Effectively this recommendation amounts to a “presumption in favour of the
preservation of life”,49 so that unless a living will makes specific reference to the
potential for an advance refusal of treatment to result in death its provisions may
be invalidated. Any anticipatory decision about health care must relate to the spe-
cific circumstances that arise and women of child bearing age must acknowledge
the possible threat to the life of an unborn child alongside the general content of
their living wills in order to safeguard validity. Autonomy is always compromised
“in the company of others” but in this context it may be non-existent.
Protecting individual autonomy is obviously the primary purpose of a living
will, but how successfully this is achieved depends not only on the wills format
and content, its scope and the clinician’s responsibility relative to it, but also on
the establishment of a clear understanding about when its operation is invoked.
It is imperative for patient autonomy that a living will becomes operative once
its author’s mental capacity becomes so diminished that she is no longer able to
decide for herself. Therefore, the definitive answer as to when a particular living
will becomes operative usually depends upon an assessment of when its author
is no longer competent to participate in medical decision-making. Alternatively,
a directive might include the provision that some other “trigger” mechanism
stimulates its implementation. The triggering factor may be a specific deteriora-
tion in the patient’s medical condition, or a particular medical occurrence that
the author considers significant for her prospects of survival. Examples might
include, loss of the ability to communicate, urinary or faecal incontinence, or
perhaps a confirmed diagnosis of a terminal or degenerative disease. Living wills
of this type are gaining in popularity in jurisdictions where advance statements
about health care are supported by legislation. They are not commonplace in
Britain where loss of mental capacity is the event that would usually be expected
to trigger the initial introduction of the provisions of a living will.
46
Re MB (Medical Treatment) [1997] 2 FLR 426.
47 Established authority exists in Paton v. BPAS [1979] QB 276 and C v. S [1988] QB 135 sup-
porting the proposition that an unborn child has no right to have its interests balanced against those
of its potential mother. Yet numerous cases, including Re T (An Adult) (Consent to Medical
Treatment) [1992] 4 All ER 649, Re S [1992] 4 All ER 671 and Re L (An Adult: Non-consensual
Treatment) [1997] 1 FCR 60, have overruled refusals of consent in order to safeguard foetal inter-
ests.
Reform: Mentally Incapacitated Adults (London, HMSO, 1995) Draft Bill, clause 9(3), 76.
49 Ibid, para 5.26, at 76.
In cases of prolonged illness the desire and ability to fully engage with med-
ical decision-making may be gradually reduced or destroyed, generating vulner-
abilities that render an assessment of mental capacity problematic. There is
often only limited awareness, both clinically and socially of the significance of
declining autonomy in these circumstances.50 Crucially the impact of fading
autonomy may be compounded if a patient only decides to devise a living will
as her illness begins to progress and her capacity decreases, since both autonomy
and competence may be questionable at precisely the time that protection from
arbitrary decisions and indignity are sought.
I WILL DECIDE
It has been stated that, “the right to decide one’s own fate presupposes a capa-
city to do so”,51 suggesting that the ability to exercise individual personal auton-
omy is only available to people who are intellectually competent. In actuality a
recognition of fluctuating or declining competence may prompt a person to con-
struct an advance directive to protect her ability to control her own fate and
thereby preserve her dignity. But, because the validity of the content of a living
will is dependent upon the competence of its author to make anticipatory health
care decisions at the time it is composed, a will constructed in these circum-
stances may be ineffective. Accurately gauging competency is therefore vitally
important in establishing the applicability of a living will both at its inception
and at the point of its activation, and the reliable evaluation of capacity is
central to this analysis.
A Test for Competence
In most instances there is no doubt about a person’s competence to give or

decline consent to treatment in real time or for the future. For example, an adult
patient who is fully conscious and suffering no mental impairment will usually
be competent to decide. Similarly, an unconscious patient is clearly devoid of the
mental capacity and physical ability required to make a competent medical deci-
sion. Another person may be mentally ill, or suffering from impaired mental
capability, yet still be considered competent for some purposes. Competence is
assessed in relation to the type of decision being made and it is widely recognised
that competence can be “both partial and fluctuating”.52 Indeed it is possible for
50 Interestingly, as financial awareness deteriorates a representative may be appointed to oversee
a patient’s monetary affairs but the law does not presently recognise a similar mechanism concern-
ing medical care.
51 Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649, per Lord Donaldson at 653.

I Will Decide 129
a person to have the capacity to marry, but, on the same day, to be incompetent
to make a detailed will.53
Where consent to medical treatment is concerned a patient with capacity
should understand the nature of the treatment and any potential complications,
as well as the implications of not being treated.54 Competence to consent should
be assessed for each decision and does not confer an overall status of compet-
ence or incompetence on a patient.55 Basing the determination of an individual’s
competence to consent to treatment on clinical and legal criteria, in relation to
each particular clinical situation creates inherent uncertainties and inconsisten-
cies in the evaluative process, as Re C,56 clearly illustrates.
C was a sixty-eight year old man who had been diagnosed as suffering from
chronic paranoid schizophrenia and had been an inpatient of Broadmoor secure
mental hospital for thirty years. He was delusional, believing that he had been a
world renowned vascular surgeon who had pioneered techniques to avoid
amputating limbs. Ironically, C’s leg became gangrenous after he sustained a
minor injury, and surgeons recommended amputation as clinical indications
suggested that his life would otherwise be endangered. C refused to consent to
surgical intervention and sought the legal right to have his refusal respected even
though the treatment was seen as potentially life saving. The questions for the
court to decide were firstly, was C competent to refuse consent, and secondly, if
his refusal was valid would it also be valid in respect of the same treatment at
any time in the future, even if C later became incompetent?57
Varying opinions and assessments of C’s mental capacity were offered by
three separate consultant psychiatrists, a surgeon, and the court, before it was
eventually decided that C was competent. The difficulties encountered in Re C
in evaluating a patient’s competence to decide are reflected in the tests and
standards proffered as mechanisms for determining competence in the case law
and legislation in this area. Three types of assessment have commonly been
used.
The first is a cognition-based test, involving an assessment of the patient’s
ability to understand information. Sections 57 and 58 of the Mental Health Act
1983 include such a test and require that a patient who is competent to consent
to treatment should be, “capable of understanding the nature, purpose and
53 In the Estate of Park, Park v. Park [1954] P 112, the particular facts of this case are explained
in M Brazier, Medicine, Patients and the Law (London, Penguin, 1992) at 100–101.
54 The Mental Health Act 1983 Code of Practice discusses the issue of capacity to make medical
treatment decisions in great detail.

55 This principle is enshrined in the Mental Health Act 1983 which permits some patients to be
treated against their will but only for conditions which relate to their mental illness. The assessment
of capacity is also relevant in Part VII of the Act, which deals specifically with the issue of compe-
tence to manage “property and affairs” and again illustrates that while a person may be considered
incompetent for the purposes of this provision she may retain capacity in respect of other decisions.
56 Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290.
57 For further commentary see, R Gordon, C Barlow, “Competence and the Right to Die” (1993)
143 New Law Journal 1719–20, E Roberts, “Re C and the Boundaries of Autonomy” (1994) 10 (3)
Professional Negligence 98–101.
likely effects” of the treatment in question. In Re C Thorpe J applied a modified

form of this type of test to determine C’s competence. He held that the patient
would not be competent if he failed to “sufficiently understand the nature, pur-
pose and effects of the proffered amputation”.58 His test assessed the patient’s
subjective understanding rather than with his ability to understand, which dis-
tinguishes it from the cognition test in the Mental Health Act 1983.
The second type of test recognises that cognition alone is often an insufficient
assessment of a person’s competence to make health care decisions, and reflects
the reasoning applied in Gillick v. Norfolk and Wisbech Area Health
Authority.59 It was held here that children under the age of sixteen possess com-
petence if they demonstrate maturity together with intelligence and under-
standing.60 There is no presumption of competence for minors in this situation;
they must effectively prove they are competent to make health-care decisions on
their own behalf. Being institutionalised and isolated from everyday decision-
making, due to mental illness or instability can similarly lead to the presump-
tion that patients are not competent to make their own choices. Consequently
these patients will need to demonstrate their competence and ability to function
autonomously in circumstances where it is likely to be seriously impaired.61
In Re C doctors presented evidence disputing C’s understanding of the
information given to him regarding the proposed amputation because he
expressed his disbelief in their assertions that he might die without the treat-
ment. The clinicians contended that if he understood but nevertheless failed to
believe that he could die, he was not competent to decide. Fennell argues that
this test poses particular practical difficulties.62 If a patient believes the assess-
ment of her situation and the suggested treatment must she accept the treatment
offered in order to demonstrate her belief in it, or can she still decide for herself
in the face of the information provided, thereby implying an element of dis-
belief?
Thorpe J based his assessment of C’s competence largely on the patient’s
reactions and responses at the court hearing, and found that C was cognisant of
his situation and was therefore competent to decide. He made his evaluation
regardless of the psychiatrist’s diagnosis of paranoid and delusional schizo-
phrenia, and the thirty years C had spent as an inpatient of Broadmoor, demon-
strating that the fact that a person is mentally disordered is not in itself sufficient
to destroy her decision-making capacity. The operation of the test was subse-
quently clarified in B v. Croydon District Health Authority63 where Thorpe J
explained that absolute disbelief amounts to being “impervious to reason,
58 Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 at 295.
59 [1985] 3 All ER 402.
60 In Re E [1993] 1 Fam Law Reports 386, Ward J endorses the notion that a minor may be both
intelligent and well-informed but may, nevertheless lack the maturity to attain Gillick competence.
61 Kaimowitz v. Michigan Dept. of Mental Health 42 USLW 2063 (1973), Law Commission
Consultation Paper No 128, “Mentally Incapacitated Adults and Decision-Making” (1993) at 31.
62 P Fennell, Treatment Without Consent (London, Routledge, 1996) at 257.
63
[1995] 2 WLR 294.
I Will Decide 131
divorced from reality, or incapable of judgement after reflection” and that this
can be distinguished from, “the tendency which most people have when under-
going medical treatment to self assess and then to puzzle over the divergence
between medical and self assessment”.64
The third test of competence is perhaps the most contentious and the most
difficult to demonstrate as a test. It focuses on the rationality of the decision
made, and is contentious because respect for individual autonomy dictates that
the rationality of any one person’s decision should not be challenged on the
basis that it fails to conform with accepted norms or the opinions of those
required to assess competence. As long as the patient is legally competent to
decide she has an absolute right to choose whether to give or refuse consent to
medical treatment. Legal precedent suggests that the choice made is not limited
to, “decisions which others might regard as sensible. It exists notwithstanding
that the reasons for making the choice are rational, irrational, unknown or even
non-existent”.65 Any decision made by a competent patient should therefore be
binding, irrespective of whether or not that decision appears rational or sensi-
ble to others. Yet, the principle is far from absolute. Examples of cases where
women have undergone court authorised caesarean sections despite their refusal
to consent have already been referred to, and a series of cases concerning young
adults also reveals that individual autonomy can indeed be devalued by other
people’s perceptions of what would constitute a rational or sensible choice in a
given situation.
Re R66 and Re W67 clearly demonstrate the contingent nature of autonomy
with their confirmation that, “no minor of whatever age has power by refusing
consent to override a consent to treatment by someone who has parental
responsibility for the minor and a fortiori a consent by the court”.68 Similarly in
Re E69 where a fifteen year old boy declined consent to a blood transfusion on
the basis of his religious beliefs. Although this was a contemporaneous decision
rather an advance directive, upholding E’s choice would inevitably have led to
his death. The judge expressed admiration for E’s intelligence and composure
but none the less felt that he had failed to comprehend the full significance of the
process of dying he would confront if his decision were upheld. However, the
level of understanding and insight described in this judgment as necessary to
demonstrate competence:
“effectively set the test of competence so high that it was not only beyond the range of
a 15 year-old boy but arguably beyond the range of most adults”.70
64 Ibid.
65 Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649, per Lord Donaldson at 653.
66 Re R (A Minor) (Wardship: Medical Treatment) [1991] 4 All ER 177.
67 Re W (A Minor) (Medical Treatment) [1992] 4 All ER 627.
68 Ibid, at 639.
69 Re E [1993] 1 Fam Law Rep 386.
70 E Roberts, “Re C and the Boundaries of Autonomy” (1994) 10 (3) Professional Negligence
98–101.
Implicit in the judgment is the suggestion that although the boy was competent
the apparent irrationality inherent in his decision, because of its inevitable con-
sequence, negated its validity.
Apparently then, a person’s competence may be otherwise firmly established,
but the substance of a particular medical decision can raise doubts about her
mental capacity, particularly in the case of minors. Jo Bridgeman’s assessment
of the inconsistencies in these cases focuses on the tension between, on the one
hand, seeking to uphold the autonomy of the minors involved and, on the other,
wanting to protect them from their potential to make ill informed and immature
decisions with dangerous consequences. She argues that “because we care” it is
often too difficult to accept an irrational but otherwise autonomous decision by
a young adult where its consequences will cause irrevocable harm.71
Refusals of consent are especially vulnerable to this kind of reasoning because
the implications of refusing consent are often far greater than when giving con-
sent. Refusing a potentially life-saving therapy can be sufficient reason to ques-
tion the integrity of a patient’s decisions and her competence to make them.
Indeed some commentators have argued that a higher degree of comprehension
is required to make an informed refusal than is necessary for a competent con-
sent.72 In the absence of an established doctrine of informed consent, accepting
treatment may amount to little more than following the advice of an experi-
enced medical professional. Declining consent in similar circumstances takes on
the appearance of a rejection of the same expertly formed opinion, ostensibly
from a position of relative ignorance. Thus a decision to refuse life-sustaining
treatment may appear irrational and be challenged on the basis of the question-
able competence of the individual concerned.
With regard to advance directives, Kristina Stern has raised concerns that
such decisions may be taken as evidence of a patient’s incompetence simply
because they fail to comply with expert opinion and are idiosyncratic.73 Where
a treatment refusal is made in advance and remote from the clinical situation to
which it becomes relevant, the appearance of irrationality may be compounded.
Stern suggests that in cases where a diagnosis of incapacity is disputed, perhaps
by the patient, the family, or carers, an independent assessment of competency
could be required to clarify the situation. Any mechanism to assist in ascertain-
ing capacity and the validity of anticipatory decisions would be useful to clarify
when an advance directive becomes operative due to incapacity but its applica-
tion in respect of anticipatory decisions would clearly be limited. The Law
Commission did not consider this possible solution, though it has been
71
J Bridgeman, “Because We Care? The Medical Treatment of Children” in S Sheldon and
M Thomson (eds.), Feminist Perspectives on Health Care Law (London, Cavendish Publishing,
1998) at 97.
72
J A Deverereux, D P H Jones, D I Dickenson, “Can Children Withhold Consent to
Treatment?” (1993) 306 British Medical Journal 1459.
73
K Stern, “Advance Directives” (1994) Medical Law Review 57–76 at 62.
I Will Decide 133
addressed in other jurisdictions.74 Some of the more general problems associ-

ated with the assessment of mental capacity in the face of apparently irrational
decision-making were discussed at length by the Law Commission.
Describing what it defined as the “outcome” approach to the assessment of
capacity, Law Commission Report 231 states:
“An assessor of capacity using the ‘outcome’ method focuses on the final content of an
individual’s decision. Any decision which is inconsistent with conventional values, or
with which the assessor disagrees, may be classified as incompetent . . . A number of
our respondents argued that an ‘outcome’ approach is applied by many doctors; if the
outcome of the patient’s deliberations is to agree with the doctor’s recommendations
then he or she is taken to have capacity, while if the outcome is to reject a course which
the doctor has advised then capacity is found to be absent”.75
Subsequently the Law Commission recommended that a legislative definition of

incapacity is needed which would become operative
“when a person is unable by reason of mental disability to make a decision on the mat-
ter in question, or unable to communicate a decision on that matter because he or she
is unconscious or for any other reason”.76
Mental disability is here defined as meaning, “any disability or disorder of the

mind or brain, whether permanent or temporary, which results in an impair-
ment or disturbance of mental functioning”.77 Further provision was included
in the Draft Bill concerning the link between a person’s competence to decide
and her understanding of the likely consequences of that decision:
“We recommend that a person should be regarded as unable to make a decision by
reason of mental disability if the disability is such that, at the time the decision needs
to be made, he or she is unable to understand or retain the information relevant to the
decision, including information about the reasonably foreseeable consequences of
deciding one way or another or failing to make that decision”.78
To date the Law Commission’s proposals have not been incorporated into
statute but many have been included in the 1999 White Paper Making
Decisions.79 In the mean time, Re MB,80 where stress, fatigue and medication
were considered by the clinicians, and the court of first instance, to have tem-
porarily impaired the patient’s capacity to refuse consent to a caesarean section,
has further clarified the test of capacity. The Court of Appeal held that,
74
The Manitoba Law Reform Commission refers to independent assessment of competence in
its Report No. 74, June 1991, Self-determination in Health Care (Living Wills and Health Care
Proxies).
75
76
Ibid, Draft Bill Clause 2 (1).
77
Ibid, Draft Bill Clause 2 (2).
78
Ibid, Draft Bill Clause 2 (2)(a).
79
Lord Chancellor’s Department, Making Decisions (London, HMSO, 1999) Cm 4465.
80
Re MB (Medical Treatment) [1997] 2 FLR 426.
“A person lacks capacity if some impairment or disturbance of mental functioning

renders the person unable to make a decision whether to consent to or refuse treat-
ment. That inability to make a decision will occur when:
a) the patient is unable to comprehend and retain the information which is material to
the decision, especially as to the likely consequences of having or not having the treat-
ment in question;
b) the patient is unable to use the information and weigh it in the balance as part of
the process of arriving at a decision”. (emphasis added)81
Useful guidance on assessing capacity has thus been formulated which will be
valuable in the clinical setting. But, even where it is easily established that a
patient either does or does not possess decision-making capacity, a living will
may still be ineffective if it is not clearly expressed or if its substance conflicts
with a clinical understanding of the patients best interests.
WILL MY WILL BE DONE ?
It is settled law that if a patient is devoid of the capacity to give or refuse con-
sent, the clinicians, or the courts, will decide for her on the basis of a determi-
nation of her best interests. If, in similar circumstances the patient has executed
a living will, her own wishes about the kind of care she desires will be known
and can be given effect. However, in some situations the provisions contained
within a person’s living will may be considered, by those responsible for her
medical care, as contrary to her best interests. The living will may include antic-
ipatory decisions with which the carers disagree, or decision-making health care
proxies may have been appointed whose opinions differ from those of the pro-
fessionals involved. In order to dispel conflict in these circumstances it will
become necessary to determine the scope and validity of the particular living
will and this will normally be achieved by examining the provisions contained
in it, and their legal status. Although living wills are usually promoted on the
assumption that they enhance patient autonomy and individual choice, there
may be situations where rigid adherence to the provisions contained in an
advance directive can limit choice and apparently become less than beneficial to
the patient concerned.82 Earlier discussion focussed on the validity of general
provisions contained within living wills but more specific issues, relating to the
alteration and revocation of an advance directive, and the refusal of basic care
are also likely to be contentious and might limit the effectiveness of an otherwise
valid advance directive.
81
Re MB (Medical Treatment) [1997] 2 FLR 426, at 437.
82
See for example, J Lynn, “Why I Don’t Have a Living Will” in A Capron (ed.) “Medical
Decision Making and the ‘Right to Die’ After Cruzan” (1991) 19 Law Medicine & Health Care 101,
and, Law Commission Report 231, Mental Incapacity, Item 9 of the Fourth Programme of Law
Reform: Mentally Incapacitated Adults (London, HMSO, 1995) para 5.4, at 67.
Will My Will Be Done? 135
Basic Care
Proposals to prohibit the validity of advance directives declining either the pro-
vision of pain relief or basic care,83 were included in Law Commission Report
231. Revisions were introduced following the British Medical Association’s
expression of concerns that effectively outlawing all anticipatory decisions
refusing pain relief would mean that those individuals who sought to remain
alert, through abstention from certain types of medication, might be denied that
opportunity. Vetoing the refusal of treatment aimed at alleviating severe pain
was thought more pertinent than denying the opportunity to refuse strong pain
relief, particularly where patients suffered inappropriate side effects. Spoon-
feeding was also originally referred to as an element of basic care that should not
be refused. The words “direct oral hydration and nutrition” were later substi-
tuted however, since this terminology better reflects the practicalities of nursing
care, which often dictates that nutrition and hydration are administered via
spouted cup or syringe.
Denying the right to refuse basic care in an advance directive is clearly
destructive of individual rights of self-determination and autonomy, yet it may
be necessary to protect the interests of others who need to have contact with the
patient concerned. Endorsing the provisions of a living will which stipulated the
complete withdrawal of basic care, including elementary hygiene and sympto-
matic pain control, may be traumatic for medical staff and other patients who
would have to observe its effects and could therefore be regarded as contrary to
public policy and destructive of dignity. It would certainly be considered uneth-
ical and against public policy to withhold basic care from an incapacitated
patient. But the public policy argument takes no account of the fact that a
patient with full mental capacity may legitimately decline the provision of basic
care, including efforts to wash and nourish her, in an effort to impress her per-
sonality on the situation.84
Alteration and Revocation
Criticisms offered by some commentators relate to the perceived inability of a

living will to adequately cater for a person’s complex care requirements85 and
83
Basic care has been defined by the Law Commission as the alleviation of severe pain, the main-
tenance of bodily hygiene, and the provision of direct oral hydration and nutrition. See also Law
Commission Report 231, Mental Incapacity, Item 9 of the Fourth Programme of Law Reform:
Mentally Incapacitated Adults (London, HMSO, 1995) at para 5.34, and Draft Bill, clause 9(7)(a)
and (8).
84
I am indebted to the doctors at Northgate Medical Practice, Canterbury, for their practical
insights into this situation.
85
See J Lynn, “Why I Don’t Have a Living Will” in A Capron (ed.) “Medical Decision Making
and the ‘Right to Die’ After Cruzan” (1991) 19 Law Medicine & Health Care 101.
the possibility patients might inadvertently deprive themselves of “professional

medical expertise or of beneficial advances in treatment”.86 Consequently many
authorities, including the Law Commission, recommend the formulation of spe-
cial mechanisms to facilitate the alteration and revocation of advance directives.
Since new therapies are continually being developed, and people often revise
their opinions about the kinds of treatment they find acceptable when they actu-
ally confront the practicalities of illness, such concerns are inevitable. It would
be a travesty if the provisions of an advance directive operated to prevent the
director receiving a valuable, even curative therapy, which was unknown when
the advance directive was formulated.
Existing case law stipulates however that the validity of a living will is
dependent on its author being sufficiently informed to have intended her antici-
patory decisions to apply in the circumstances that have subsequently arisen.87
Under these criteria, the availability of clinical or pharmaceutical developments
not envisioned when the advance directive was formulated would almost cer-
tainly imply that the directive would be invalid in the specific situation that had
arisen. Furthermore, while she retains mental capacity the author of a living will
can alter, or revoke, its provision as she chooses, and her contemporaneous
decisions cannot be overridden.
In respect of the formulation, alteration and revocation of advance directives
the Law Commission favours a policy of “maximum flexibility”,88 designed to
enable patients to review the provisions contained within their living wills in the
light of developing medical circumstances and changes in their own values and
opinions. Specifically, concerns have been expressed that people should not be
constrained by the need to formally repudiate their advance directive, “it would
seem entirely wrong to stipulate that an advance refusal must stand until, for
example, paper and pencil and an independent witness can be found”.89 At first
glance then, given the need for precision in drafting and clarity regarding the cir-
cumstances where an advance directive becomes operative, there would seem to
be little need for specific guidelines relating to their revocation and alteration.
Perhaps of greater significance is the need to ensure that health care profession-
als encountering living wills are aware of their significance and their profes-
sional obligations in relation to them. Regardless of its content an advance
directive will be ineffective unless the medical professionals caring for the
patient are aware of its existence and their responsibility towards it.
Reform: Mentally Incapacitated Adults (London, HMSO, 1995) at para 5.4.

87 Re T [1992] 4 All ER 649, Airedale NHS Trust v. Bland [1992] 1 All ER 821.
Reform: Mentally Incapacitated Adults (London, HMSO, 1995) at para 5.32.

89 Ibid, para 5.31.
WHERE THERE ’ S A WILL
Advance statements about medical care hold significance for both patient
autonomy and clinical responsibility. They can simultaneously offer a reassur-
ance for the patient and pose a threat to clinical freedom, particularly where
treatment decisions designed to culminate in death are endorsed and encour-
aged. In this situation an advance directive might represent a stark choice
between “prior personal choice and immediate well-being”.90 Clinicians may
experience this choice as a tension between the obligation to respect individual
autonomy and the duty to treat a patient according to her best interests. Hence
a living will can present real professional and ethical dilemmas.
Members of all medical professions, and the professions supplementary to
medicine, may have responsibilities relating to the operation of living wills. The
patient’s general practitioner, and any doctor by whom the patient is treated in
hospital, will have particular obligations since it is they who must ensure that
valid consent for medical treatment is given. Other health-care professionals
also have a role to play depending upon when they come into contact with the
patient. For example, nursing staff, particularly those involved in long-term or
terminal care, tend to develop close relationships with patients, and may be
aware of anticipatory decisions that are unknown to other carers. Conversely
medical workers, such as ambulance drivers and para-medics, may encounter a
patient for the first time in an emergency situation and be completely unaware
of that individual’s concerns or preferences, even though this is precisely the sit-
uation the living will anticipates. How far the directions in a living will are
observed depends therefore not only on how clearly it is drafted and the capa-
city of its author, but also on the practical environment within which it operates
and the clinical relationship between the patient concerned and the medical staff
in attendance.
In Britain the care and treatment of the population is divided between pri-
mary and secondary care under the umbrella of the National Health Service.
General practitioners (GPs) operate as family doctors with responsibility for
primary care. They conduct most initial consultations, and refer patients to hos-
pitals or clinics for specialist secondary care. Superimposed on this system is the
facility for people to self-refer to hospital accident and emergency departments
without seeing a GP. Hospital consultants and GPs take overall responsibility
for the patients under their care, even where they are not directly involved in ser-
vice provision. Other members of the clinical team, such as junior doctors,
nurses, and members of the professions allied to medicine,91 generally answer to
the clinician in charge of the patient’s care under the terms of their contracts of
employment, and according to their professional Codes of Practice. Paramedics
90 D Lamb, “Refusal of Life-prolonging Therapy” (1995) 1 (2) Res Publica 147 at 156.
91 For example physiotherapists and radiographers.
occupy an almost unique position with respect to living wills here because they
work in environments where doctors are not usually available to make deci-
sions, and where they often have to react to unforeseen situations.
Most paramedics are ambulance staff or nurses who have been specially
trained to provide emergency care and life-sustaining treatment until such time
as medical assistance is available. If confronted with an unconscious patient
who is not competent to give consent the paramedic will administer treatment
as the clinical situation dictates. Frequently this involves first aid, resuscitation
and maintenance while a patient is transported to hospital. If the patient is com-
petent and can give or refuse consent the paramedic must act accordingly; like
doctors they are not authorised to treat a patient in the absence of consent unless
it is an emergency and the patient is not competent but needs urgent treatment.
Faced with a situation where the patient is not conscious but the relatives or
friends insist they have made a valid living will refusing treatment in the situa-
tion that has occurred, the paramedic must judge whether or not treatment is
appropriate.92 However, just as for doctors, if there is any doubt about the
validity or applicability of a living will paramedics are authorised by their Code
of Practice to administer treatment in accordance with the patient’s best inter-
ests. Paramedics are likely to take this course rather than risk neglecting the duty
of care they owe to their patients by failing to treat in an emergency.93
General practitioners are the clinical group most likely to be involved with the
formulation of living wills and will often be responsible for holding a copy of a
patient’s living will in her medical records. Historically patients have tended to
have long-standing professional relationships with their family doctors. In these
circumstances the GP would usually have been aware not only of the patient’s
medical history but also of their social circumstances and background,94 so the
GP may be regarded as an appropriate source of guidance about future medical
treatment and anticipatory decision-making. By contrast, clinical staff in the
hospital setting are less likely to be involved in the composition of patient’s liv-
ing wills, other than in the context of long term care, where anticipatory deci-
sions taken in consultation with hospital staff, may constitute an advance
directive. These personnel are the ones with ultimate responsibility for comply-
ing with the terms of a previously executed living will. They may only become
aware of its existence at the point where it becomes clinically significant because
the exact medical circumstances anticipated by the patient have arisen, perhaps
raising tensions between the wishes of the patient and the professional discretion
92
K V Irerson, “Forgoing Hospital Care: Should Ambulance Staff Always Resuscitate?” (1991)
17 Journal of Medical Ethics 19–24.
93
This conclusion was reached following informal consultation with ambulance crews and para-
medics in the Canterbury area, in August 1996.
94
In the present health care and social environment this may represent a rather idealised view,
since the population is increasingly geographically mobile and many patients attend large health
centres where they might encounter several different doctors. The move towards casual “drop-in”
medical centres and co-operative out of hours services can also contribute to a loss of continuity in
patient services.
of the clinical team. Disputes here would do little to enhance patient autonomy
and dignity.
Clearly health-care professionals must be aware of the legal status of advance
directives and how they relate to clinical responsibility if they are to adequately
protect the autonomy of the patients who are their authors. Hence the British
Medical Association, in conjunction with the Royal College of Nurses, has pub-
lished guidelines for its members which are intended to operate as a Code of
Practice for practitioners dealing with advance directives.95
In summary these guidelines state that “advance directives refusing some or
all medical procedures must be followed where valid and applicable”. To ensure
their validity, checks should be made that directives refusing life-prolonging
treatments were made by the patient, of her own free will, and without undue
influence. Furthermore, oral objections or opinions about particular treatments
may constitute an advance directive, as long as the patient was informed and
competent at the time. Where a patient’s wishes are not known or unclear,
appropriate treatment should be given in accordance with the clinical assess-
ment and health professionals may contact GPs to confirm the existence and
validity of advance directives.
Following the guidelines, and case law,96 a doctor who is aware that a patient
has made an advance directive that is relevant to the unfolding clinical situation,
should consider its contents before taking treatment decisions on behalf of a
patient who has become incompetent. A living will that is applicable in the
clinical circumstances should be regarded as “the settled wishes of the patient”
and doctors are advised to “act upon it if the clinical situation requires”.97 Yet
its effectiveness will be compromised unless it is sufficiently detailed to apply to
the specific situation that has arisen because its validity will be vulnerable to
challenge. Jurisdictions on both sides of the Atlantic have adopted a similar
approach and analysis of the British cases concerned with treatment refusal98
clearly indicates the level to which they are informed by judgments from
America and Canada.99 Much academic debate has been generated as a result of
these court decisions because they appear to subjugate the autonomous deci-
sions of the patients in favour of a paternalistic clinical response. Exceptionally
95 The BMA, Advance Statements about Medical Treatment (1995) London, BMA publications
was published following recommendations made in the Law Commission Report 231, Mental
Incapacity, Item 9 of the Fourth Programme of Law Reform: Mentally Incapacitated Adults
(London, HMSO, 1995) at paras. 5.39,and 5.4, and by the House of Lords Select Committee on
Medical Ethics para. 265.
96
Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290.
97
The MDU, Problems in General Practice: Consent to Treatment, July 1996, London: The
Medical Defence Union, 10.
98
Re R [1991] 4 All ER 177, Re W [1992] 4 All ER 627, Re T [1992] 4 All ER 649, Re S [1992] 4 All
ER 671, Re L (An Adult: Non-consensual Treatment) [1997] 1 FCR 60, and Re MB (Medical
Treatment) [1997] 2 FLR 426 are recent examples.
99
The judgements in Re T [1992] 4 All ER 649 and Re S [1992] 4 All ER 671 in particular, are cer-
tainly directly informed by the judgements in In Re Estate of Dorone 517 pa 3, 543 A 2d 452 (1987)
and (1991) 474 NW 2d 426 (Michigan CA).
however, the Canadian case Malette v. Shulman100 offers a judgment that is

rather more sympathetic to the desires of patients formulating advance direct-
ives.
After Mrs Georgette Malette and her husband were involved in a road acci-
dent in which Mr Malette had been killed. Mrs Malette was rushed unconscious
to hospital where, under the care of Dr Shulman, she was found to be suffering
from head and facial injuries and was “bleeding profusely”. The bleeding had
induced severe clinical shock for which Ringer’s Lactate and glucose were
immediately administered, which is a typical treatment for shock resulting from
blood loss. Whole blood would later be transfused if the patient’s condition
failed to improve after this initial treatment.
Mrs Malette’s condition did not improve but before any further treatment
decisions were made a card identifying her as a Jehovah’s Witness was discov-
ered in her belongings. As Mrs Malette was a French speaking Canadian the
card was written in French; on translation it read:
“NO BLOOD TRANSFUSION!
As one of Jehovah’s Witnesses with firm religious convictions, I request that no blood
or blood products be administered to me under any circumstances. I fully realise the
implications of this position, but I have resolutely decided to obey the Bible command:
‘Keep abstaining . . . from blood’. (Acts 15:28, 29). However, I have no religious objec-
tion to the use of nonblood alternatives, such as Dextran, Haemaccel, PVP, Ringer’s
Lactate or saline solution”.
Dr Shulman was informed of the contents of the card. A surgeon had also exam-
ined Mrs Shulman and both doctors had formed the opinion that her blood vol-
ume must be maintained to avoid irreversible shock. While undergoing further
diagnostic tests the patient’s condition deteriorated and Dr Shulman personally
administered the transfusions of blood he regarded as necessary to preserve her
life. He was fully aware of the card and its contents, but was not entirely satisfied
that the opinions expressed represented Mrs Malette’s steadfast opinion in this life
threatening situation. The doctor took responsibility for disregarding the instruc-
tions on the card and later raised questions concerning its validity, in defence of his
actions. Robins JA articulated these queries in the Ontario Court of Appeal:
“he did not know whether she might have changed her religious beliefs before the acci-
dent; whether the card may have been signed because of family or peer pressure;
whether at the time she signed the card she was fully informed of the risks of refusal
of blood transfusions; or whether, if conscious, she might have changed her mind in
the face of medical advice as to her perhaps imminent but avoidable death”.101
The concerns expressed by Dr Shulman are not dissimilar to those voiced in

Dorone, Werth v. Taylor or indeed in Re T and Re S. However, Robins JA
responded to them quite differently, arguing that,
100
(1990) 67 DLR (4th) 321, [1991] 2 Med LR 162 (Ont CA).
101
Ibid, per Robins JA.
“there was no reason not to regard this card as a valid advance directive. Its instruc-
tions were clear, precise and unequivocal, and manifested a calculated decision to
reject a procedure offensive to the patient’s religious convictions”.102
Furthermore, he expressed the view that, because the opposition of Jehovah’s

Witnesses to blood transfusions is well known and the card carried by Mrs
Malette explicitly referred to her understanding of the implications of such a
refusal in all circumstances, the doctor could not defend his actions with the
argument that he held a “reasonable belief that the patient would have con-
sented had she been in a condition to do so”. The fact that the situation was one
of emergency was similarly dismissed:
“A doctor is not free to disregard a patient’s advance instructions any more than he
would be free to disregard instructions given at the time of the emergency. The law
does not prohibit a patient from withholding consent to emergency medical treatment,
nor does it prohibit a doctor from following his patient’s instructions. While the law
may disregard the absence of consent in limited emergency circumstances, it otherwise
supports the right of competent adults to make decisions concerning their own
health”.103
Robins JA stated categorically that Dr Shulman’s conduct in transfusing Mrs

Malette despite the objections raised in her card was not authorised, even
though she was unconscious and could not verify that the views described on the
card were an expression of her firmly held beliefs. He described the doctors
actions as contrary to the principles of individual autonomy and self-
determination, “violating” the patient’s right to control her own body and dis-
respectful of her religious beliefs. According to him, the very fact that Mrs
Malette carried a card in anticipation of an emergency situation where she
would be unable to communicate her wishes was evidence of her continuing
commitment to the opinions stated on the card. The unconscious patient’s
stated opinions should have been respected by the clinical staff. In disregarding
them Dr Shulman’s action constituted a battery.
The facts of Malette v. Shulman, clearly demonstrate the tension that often
exists between established, and well intentioned, medical practice, and the kind
of provisions contained within advance directives. With the exception of those
whose advance directives are designed to ensure that they obtain every possible
medical advantage, people usually construct their advance directives because
they wish to decline certain forms of treatment in certain situations. Often this
will amount to a declaration that the individual concerned does not wish to be
kept alive beyond what they consider to be dignified bounds. This of course,
conflicts with the ethos that exists within the medical profession of using all
available resources to save life.
Malette v. Shulman also illustrates the difficulties that exist within the BMA
guidelines for the administration of advance directives. The level of scrutiny
102 Ibid.
103 (1990) 67 DLR (4th) 321, [1991] 2 Med LR 162 (Ont CA).
necessary to ascertain the validity and applicability of advance directives is out-

side the ordinary experience of most medical practitioners. Doctors do not rou-
tinely need to interrogate statements made by patients concerning their present
or future health care. The absence of a legal doctrine of informed consent in
Britain means that even decisions made by patients concerning their consent to
medical intervention rarely require detailed scrutiny. Hence, practitioners may
not possess the skills required to determine the validity of an advance directive,
particularly where the presence or absence of legally defined concepts like
duress and undue influence are concerned. To expect doctors to ascertain that
patients have executed their advance directives of their own volition and free
from external pressure is to encumber them with a burden which can only com-
pound the pressures they bear in everyday clinical practice. Dr Shulman raised
this issue with his concerns about whether Mrs Malette had signed her refusal
of blood transfusion card because of family or peer pressure, and his concerns
were overruled by the court. Further uncertainty is introduced by the require-
ment in the BMA guidelines that doctors must ensure that the wishes expressed
are those of the patient, made freely and without undue influence. It is unclear
whether the assessment should be made, and presumably recorded, at the time
when the advance directive is executed or at the time when its provisions are put
into effect. Clearly it will be virtually impossible for a doctor to ascertain
whether an advance directive was made freely and in the absence of duress if, as
is probable in an emergency setting, her first contact with the patient and the
directive, occur simultaneously. This is the situation where living wills could
perhaps most benefit patients and where they will in practice probably be of the
least benefit.104
The BMA guidelines include the provision that if there is doubt as to a
patient’s intentions, treatment should be given according to a determination of
her best interests. Any patient who is incapacitated upon presentation and is not
known to the doctor concerned is likely therefore to be treated according to best
interests criteria, whether or not there is an existing advance directive, particu-
larly in an emergency situation. This may provide a safeguard for those doctors
who can demonstrate genuine doubts as to the validity of a living will, or it may
offer a clinician the opportunity to disregard a directive that does not corres-
pond with her assessment of clinical need. The result may be that a properly exe-
cuted directive fails to operate in the way its author intended because a clinician
is uncertain about it’s validity. However, a doctor who wrongly assesses the
validity of an advance directive and disregards it, as did Dr Shulman, may not
be authorised to treat the patient and may incur tortious or criminal liability as
a consequence.
Perhaps perversely the BMA guidelines do not significantly improve the
chances of a patient’s living will being upheld by a clinician who is unfamiliar
104 See D Morgan, “Odysseus and the Binding Directive: Only a Cautionary Tale?” (1994) 14
Legal Studies 411, at 423.

Conclusions 143
with the patient’s medical and social history, such as when family doctors use
deputising or co-operative systems to provide emergency services outside of nor-
mal surgery hours. The stipulation in the guidelines that GPs may be contacted
by other health workers to verify the existence of a living will or clarify its terms,
dictates that family doctors must devise mechanisms for identifying which
patients have composed living wills. Also, because verbal statements may con-
stitute valid advance directives, any statements made by a patient that may be
considered an advance directive should be documented and similarly identifi-
able. Anecdotally, some general practitioners do make provision for these cir-
cumstances by ensuring that their deputising or co-operative administrators are
aware of all of their patients who have living wills and the contents of those
wills, but this appears to be an uncommon practice, calling into question how
effective advance directives are in practice.
A patient’s expectation is that if she has gone to the lengths necessary to for-
mulate and record an advance directive then the provisions contained within it
will be acted upon. Yet, despite the Law Commission’s recommendation that no
liability should flow where a doctor withholds treatment according to the pro-
visions of an advance directive believed to apply in the circumstances,105 doctors
will be reluctant to act upon an advance directive whose validity they cannot
verify because they do not personally know the patient, particularly in circum-
stances which might lead to death. Imagine the hypothetical situation where a
patient arrives in an emergency room unconscious but in a treatable condition.
The accompanying family members insist that the living will they have with
them, which decrees that no treatment should be administered, is observed, and
that the patient be allowed to die. Is the attending clinician going to examine the
document to ascertain its authenticity and validity while the patient’s condition
deteriorates, or is she, like the para-medics referred to earlier, going to treat the
patient according to best interests criteria and ask questions later?
CONCLUSIONS
In Britain the Law Commission, the BMA and the common law, all now sup-
port the principle of patients being enabled to make advance declarations and
decisions about the medical treatment they will receive if they become incapa-
citated. The Law Commission has recommended that advance refusals of care
should be presumed to have been validly made, if they are “in writing, signed
and witnessed” and there is “no indication to the contrary”,106 and these views
are reiterated in the BMA Code of Practice relating to advance statements about
Reform: Mentally Incapacitated Adults (London, HMSO, 1995) Draft bill, clause 9(4).
Reform: Mentally Incapacitated Adults (London, HMSO, 1995) Draft Bill clause 9(5).
medical care. However, the BMA guidelines associated with the Code of
Practice, and the common law interpretation of the issues involved in cases con-
cerning refusal of treatment in life threatening circumstances, suggest that, to
paraphrase Sally Sheldon, the effectiveness of a living will is subject to the dis-
cretion of the doctors and courts involved.107
In America and Canada, where there is a significant body of legislation pro-
tecting the right to make an advance directive, a number of cases have arisen
concerning the application of the provisions contained within living wills, most
revolving around the issue of the administration of treatment in the absence of
consent.108 However, the Voluntary Euthanasia Society reports that more
recently, civil cases concerning “wrongful life” have been brought by patients
who did not wish to be resuscitated or treated. Edward Winter brought such a
case after he was resuscitated by a nurse following a heart attack. Prior to this
he had witnessed the lingering death of his wife and expressed his wish that if
ever he should need to be resuscitated no action should be taken because he
wished to be allowed to die. He was left in a severely debilitated condition and
later sued the hospital for actions he believed had deprived him of the ability to
die with dignity.109
Experience, and the cases referred to in this chapter, demonstrate that anti-
cipatory decisions made by patients about their future medical care have often
been overruled or disregarded. Similarly, treatment decisions declining consent
in circumstances where non-treatment is likely to result in death are less readily
complied with than those consenting to intervention. As Derek Morgan sug-
gests, considering the nature of the doctor/patient relationship and the
responses of the courts to it, the assessment of advance directives by doctors and
the courts cannot be regarded as “value-neutral”.110 Living wills should be valu-
able in enhancing individual autonomy in the context of medical care. They
could also be useful as a means of protecting doctors from litigation in circum-
stances where treatment is withdrawn. But how effective they can be in pro-
moting death with dignity by “protecting patients from the final sting, the
broken promise which leaves them powerless to control their last days”,111
remains uncertain.
107
S Sheldon, “Subject Only to the Attitude of the Surgeon Concerned: The Judicial Protection
of Medical Discretion” (1996) 5 (1) Social and Legal Studies 95, which suggests that in many clini-
cal situations, perhaps most notably those concerning women’s reproductive rights, medical pater-
nalism appears to remain unfettered and is frequently upheld by the courts.
108
In Re Estate of Dorone 517 pa 3, 543 A 2d 452 (1987), Werth v. Taylor (1991) 474 NW 2d 426
(Michigan CA), Malette v. Shulman (1990) 67 DLR (4th) 321, [1991] 2 Med LR 162 (Ont CA).
109
Voluntary Euthanasia Society, Your Ultimate Choice: The Right to Die with Dignity,
(London, Souvenir Press, 1992) at 16. Of course it must be remembered that this incident occurred
in a jurisdiction where costly health care must be privately funded.
110
D Morgan, “Odysseus and the Binding Directive: Only a Cautionary Tale?” (1994) 14 Legal
Studies 411, at 423.
111
J Montgomery, “Power Over Death: The Final Sting” in R Lee, D Morgan (eds.) Death Rites:
Law and Ethics at the End of Life (London, Routledge, 1996) 37–53, at 37.
6
Is Euthanasia a Dignified Death?
“I have had a good life and I would dearly like a good death . . . my last wish
is to die with dignity”.1
INTRODUCTION — WHY DIGNITY ?
Previous chapters have considered medically assisted dying and the preservation
of autonomy at the end of life through treatment refusal and living wills. In
order to further scrutinise the close association between autonomy and dignity
at the end of life this chapter will assess whether dignity in dying can indeed be
achieved through these mechanisms. Can dignity ever be attained by curtailing
treatment or by medical interventions that hasten death, or is the whole process
of dying despite the best efforts of modern medicine so inherently undignified
that no action can possibly succeed in providing dignity?
Respect for human dignity has been described as “the most important feature
of Western political culture”.2 Respect for human dignity means respecting the
intrinsic value of human life and as such it underpins the high regard for indi-
vidual autonomy that is pivotal to the perceived quality of a person’s life. At the
end of life this dictates that dying should be attended by a degree of dignity that
reflects the quality of the life lived until that time. Hence the ability to govern
one’s own conduct according to self-formulated rules and values should
be upheld and personal choices endorsed, enabling people to control their own
destinies.
Modern medicine has developed the ability to maintain life in the face of
intractable illness, often at the cost of prolonging the dying process and
“sophisticated new medical and psychotherapeutic technology can constitute a threat
to the physical and intellectual integrity of the individual, minimising the degree of
control and choice he has over his own life”.3
Science and nature then become rivals in a contest where death represents the
ultimate medical failure and:
1
C Taylor-Watson in Margarette Driscoll “After a Good Life, Why Can’t we Choose a Good
Death?” The Sunday Times Jan 15 1995.
2 R Dworkin, Life’s Dominion: An Argument about Abortion and Euthanasia (London, Harper-
Collins, 1993) at 166.

3 L Sampaio, “To Die with Dignity”, (1992) 35 (4) Social Science and Medicine 433–42, at 433.
146 Is Euthanasia a Dignified Death?
“the quality of life remaining to many terminally ill people has been tragically com-
promised by an ideology driven by the medical technical imperative to treat, . . . where
curative medicine is prioritised at the expense of individuals”.4
For a person seeking death with dignity, overriding autonomy by insisting on

utilising every available therapy is inherently destructive of human dignity and
can compromise her quality of life.
When medical technology intervenes to prolong dying like this it does not do
so unobtrusively. It does so with needles, tubes, pain and discomfort, accom-
panied by the bright lights, noise, odours and loss of privacy associated with
institutional caring. In this environment death represents, “the ultimate form of
consumer resistance, (where) natural death is that point at which the human
organism refuses any further input of treatment”.5 By contrast, the opportunity
to die unencumbered by the intrusion of medical technology and before experi-
encing loss of independence and control, appears to many to extend the promise
of a dignified death. As a result, euthanasia and death with dignity have become
inextricably linked.
Concerns about excessive treatment have generated much of the debate about
and support for euthanasia. Fuelled by the increasing longevity of the popula-
tion and the further development of medical expertise, the euthanasia debate is
therefore gaining momentum and proponents of voluntary euthanasia argue
that by taking control when death is inevitable and avoiding the futile excesses
offered by medicine, greater dignity can be achieved.
NEEDING DIGNITY
Death and dying are elements of life over which human beings can exert only
limited control. Death itself is not an experience that can be recounted or shared
with others, but dying is an observable phenomenon whose contemplation
shapes peoples’ perceptions of their own lives and their expectations for their
own demise. “Fear of dying, fear of the possible mode of dying, fear of death
itself are part of the human condition”6 and the combining of these fears with
new anxieties about the excesses of inappropriate medical care has fostered the
convergence of euthanasia and death with dignity that is now well established
in Western culture. Furthermore, it has been acknowledged that individual
choice and self-determination are central to this debate.7 Surveys of patients’
attitudes to terminal care in various jurisdictions suggest that the possibility of
4 B McNamara, et al, “The Institutionalisation of the good Death” (1994) 39 11 Social Science
and Medicine 1501–8, at 1505.

5 I Illich, Medical Nemesis: The Exploration of Health (Delhi, Rupa, 1975) at 149.
6 J Sanders, “Medical Futility: CPR”, in R Lee & D Morgan, Death Rites: Law and Ethics at the
End of Life (London, Routledge, 1994) 72–90 at 77.

7 M Kelner, I Bourgeault, “Patient Control Over Dying: Responses of Health Care Professionals”
(1993) 36 Social Science and Medicine 757–765.

Needing Dignity 147
choosing an alternative to becoming dependent upon medical carers and bur-

densome to family is fundamental to dignity in this context.8 A similar view is
expressed by Angell in her moving account of how, in the pursuit of a dignified
death, her father shot himself the night before he was to be admitted to hospital
for treatment for prostate cancer.9
Evidence of these attitudes has been clearly demonstrated in Holland where,
prior to recent legislative changes, euthanasia was regarded as legally permissi-
ble subject to established procedural guidelines,10 and was practised openly. In
1990, as part of its preparation for further discussions about the legalisation of
euthanasia, the Dutch Government sought a national review of “Euthanasia and
Other Decisions Concerning the End of Life” and commissioned the Remmelink
study.11 Three distinct areas of study were undertaken. Firstly, detailed inter-
views were conducted with 405 physicians; secondly, questionnaires were sent
to the doctors of a sample 7,000 deceased persons, and thirdly, the 405 doctors
interviewed provided information about the 2,250 deaths that had occurred in
their collective practices in the six months following the interviews.
Three types of medical decision at the end of life (MDEL) were considered:
non-treatment decisions, the administration of high doses of opioids to relieve
pain and control symptoms and active euthanasia. The results showed that
MDEL had been taken in 38 per cent of all deaths and in 54 per cent of non-acute
deaths. Life was shortened by the use of high doses of opiates in 17.5 per cent of
all deaths and by non-treatment in a further 17.5 per cent. Euthanasia by the
administration of a lethal dose of medication at the request of the patient was
estimated to occur in 1.8 per cent of all deaths annually.12
The participants in the study were questioned about the reasons patients gave
for requesting euthanasia. Their responses showed that 57 per cent of patients,
the largest proportion, mentioned loss of dignity, 46 per cent mentioned pain,
46 per cent were concerned about unworthy dying, 33 per cent wanted to avoid
being dependent on others, and 23 per cent mentioned tiredness of life. In less
than 5 per cent of the cases pain was given as the primary reason for requesting
euthanasia. A similarly constructed study reported in the British Medical
8 See for example, P J Van Der Mass, J J M Van Delden, L Pijnenborg, and C W N Looman,
“Euthanasia and Other Medical Decisions Concerning the end of Life” (1991) 338 The Lancet 669,
C Seale and J Addington-Hall, “Euthanasia: Why People Want to Die Earlier” (1994) 39 Social
Science and Medicine 647–54, and, R Hunt, I Maddocks, D Roach, A McLeod, “The Incidence of
Requests for a Quicker Terminal Course” (1995) 9 (2) Palliative Medicine 167–8.
9
M Angell, “The Supreme Court and Physician-Assisted Suicide—the Ultimate Right, (1997)
336, New England Journal Of Medicine 50–3.
10
J Griffiths, “The Regulation of Euthanasia and Related Medical Procedures that Shorten Life
in the Netherlands” (1994) 1 Medical Law International 137–58, at 143.
11
P J Van Der Mass, J J M Van Delden, L Pijnenborg, and C WN Looman, “Euthanasia and
Other Medical Decisions Concerning the end of Life” (1991) 338 The Lancet 669.
12
R Fenigsen, “The Case Against Dutch Euthanasia” (1989) Hastings Centre Report, Special
Supplement 22–30, claims that the incidence of active euthanasia in Dutch AIDS patients is 11.2%,
suggesting that the incidence of active euthanasia is variable according to the disease group.
Journal in October 2000,13 demonstrated strikingly similar statistics, with

56 per cent of patients whose request for euthanasia was granted siting
“avoiding loss of dignity” as a main reason for seeking death. In both studies
retaining dignity and control was considered more important than relief from
terminal pain as a reason for requesting euthanasia, illustrating the close link
between euthanasia and dignity in the minds of patients.
Similar findings were also recorded in a survey of 3,696 people in 20 health
authorities in England.14 The participants were questioned about relatives and
friends who had recently died, of whom 3.6 per cent were shown to have
requested euthanasia at some time during their final year of life. As in the Dutch
samples, a dread of dependency and the indignity associated with it was more
prominent than fear of pain amongst this group. Preserving dignity through the
avoidance of dependency and the maintenance of autonomy, was of greater
significance to those surveyed than was relief from pain. Indeed there was an
expectation that pain could be controlled, but that some of the methods of
pain relief could themselves lead to indignity. For these people euthanasia
represented an attractive alternative to conventional medical therapy, suggest-
ing that perhaps the issue of dependence and indignity needs to be more fully
appreciated and catered for than at present. Wider issues than the purely
medical, including the social and economic, also need to be addressed. To this
end, Seale and Addington-Hall comment:
“if good care is to obviate the desire to die sooner, it needs to address the problem of
dependency as well as to provide the symptom control in which hospice practitioners
have developed such impressive expertise”.15
In the post war period patients have become consumers of health care services
who demand to be recognised by medical professionals as people first and
patients second.16 Today many patients insist on more than just a right to health
care in general, they seek a right to choose specific types of treatment. They
want to be able to retain control throughout the entire span of their lives and to
exercise autonomy in all medical decisions concerning their welfare and treat-
ment. A survey of members of the Voluntary Euthanasia Society substantiates
evidence of the trend in that the reason most often given for joining was “to be
13
I Haverkate, B D Onwuteaka-Philipsen, A Van Der Heide, P J Kostensa, G Van Der Wal,
P J Van Der Mass, “Refused and Granted Requests for Euthanasia and Assisted Suicide in the
Netherlands”, (2000) 321 British Medical Journal 865–6.
14
C Seale & J Addington-Hall, “Euthanasia: Why People Want to Die Earlier” (1994) 39 Social
Science and Medicine 647–54.
15 Ibid.
16
Arguments about emerging consumerism in health care have been rehearsed over many years.
Some examples include, W Arney, B Bergen, “”The Anomaly, the Chronic Patient and the Play of
Medical Power” (1983) 5 Sociology of Health and Illness 12. L Darvall, Medicine, Law and Social
Change (Aldershot, Dartmouth, 1993), Lord Irvine of Lairg, “The Patient, the Doctor, Their
Lawyers and the Judge: Rights and Duties” (1999) 7 Medical Law Review 255–268.
Finding Dignity 149
able to control myself in the circumstances of my own death”.17 The concepts

of autonomy, self-determination and control at the end of life are therefore, key
factors in conflating euthanasia and dignity, but the concept of dignity itself
remains esoteric and difficult to define.
FINDING DIGNITY
The Oxford English Dictionary defines dignity as, “true worth, excellence, high
estate or estimation, honourable office, rank or title; elevation of manner,
proper stateliness”, so that to dignify is to, “make worthy; confer dignity upon,
ennoble”. “Dignity commands emphatic respect”.18 In the context of dying, the
word dignity engenders a sense of serenity and powerfulness, fortified by “qual-
ities of composure, calmness, restraint, reserve, and emotions or passions sub-
dued and securely controlled without being negated or dissolved”.19 This being
so, a person possessed of dignity at the end of life, might induce in an observer
a sense of tranquillity and admiration which inspires images of power and self-
assertion through restraint and poised composure.
Though dignity is firmly identified in modern bio-ethics, it is not a concept
that is presently recognised by the law. It has however been alluded to in cases
concerning medical decisions at the end of life. For example, in Airedale NHS
Trust v. Bland20 Lord Goff stated that, “. . . account should be taken of the
indignity to which . . . a person has to be subjected if his life is to be prolonged
by artificial means”, and in Re A (A Minor)21 Johnson J held that, “. . . it would
be wholly contrary to the interests of that child . . . for his body to be subjected
to what would . . . be the continuing indignity to which it is subject”.22 Dignity
is also gaining currency through the language of human rights in other jurisdic-
tions, and not always in respect of decisions at the end of life.
Signatories to the Council of Europe’s Convention on Human Rights and
Biomedicine resolve to “take such measures as are necessary to safeguard human
dignity and the fundamental rights and freedoms of the individual with regard to
the application of biology and medicine”,23 as do those to numerous other
national and international treaties and conventions. In France the principle of
17
See R Lam, “Who is Concerned about the Right to Die with Dignity? A Postal Survey of Exit
Members” occasional paper (London, Institute for Social Studies in Medical Care, 1981).
18 A Kolnai, “Dignity”, in R S Dillon (ed.) Dignity, Character, and Self-Respect (London,
Routledge, 1995) 53–75, at 55.

19 A Kolnai, “Dignity”, in R S Dillon (ed.) Dignity, Character, and Self-Respect (London,
Routledge, 1995) 53–75, at 56.

20 Airedale NHS Trust v. Bland [1993] 1 All ER 821.
21 Re A (A minor) [1992] 3 Med L R 303.
22 Ibid at 305.
23 Council of Europe, Convention for the Protection of Human Rights and Dignity of the Human
Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and
Biomedicine (DIR/JUR (96) 14) (Strasbourg, Directorate of Legal Affairs, November 1996).
safeguarding human dignity was recently identified within the preamble to the
1946 constitution, coming to light when the French Constitutional Council was
reviewing proposed new laws on bio-ethics to ensure their conformity with the
constitution. Since then the principle has been referred to in a number of cases
concerning, for example, the constitutionality of legislation on housing and the
morality of the bizarre practice of dwarf throwing.24 Here, two mayors objected
to dwarf throwing competitions being conducted in their localities, on the basis
that the spectacle violated human dignity. Exactly how human dignity should be
interpreted in these circumstances, and from whose perspective, fell to be deter-
mined. The Conseil d’Etat decided that both the dignity of the individual dwarf,
who was being thrown, and that of those assembled to view the event were to be
considered, and that dignity was compromised both collectively and individu-
ally. Dwarfs, including the participant, who regarded his own dignity as unblem-
ished, were at risk due to the degrading nature of the process, which would
devalue the social worth of dwarfs generally. The spectators were also likely to
be debased by their association with the indignities imposed during the show.
Thus it was that this extraordinary case established human dignity as a valuable
constitutional principle in French law, albeit without clearly defining its extent
or application. The concept remains even less well defined in other jurisdictions.
In America numerous Acts and proposals for legislative reform permitting
assisted dying have included “dignity” in their titles.25 The 1991 Natural Death
Act of California refers specifically to the, “recognition of the dignity and pri-
vacy that a person has a right to expect”, in its endorsement of a person’s right
to “make a written declaration instructing his or her physician to withhold or
withdraw life-sustaining treatment . . . in the event that the person is unable to
make those decisions”.26 The Act does not condone mercy killing or assisted sui-
cide, but it does acknowledge that a person’s dignity may be preserved through
the availability of the choice to decline treatment, even if the exercise of that
choice results in death. It makes no attempt to define dignity in this context.
The concept of human dignity was also central to the case of Rodriguez v.
Attorney General of Canada and Others,27 mentioned in chapter four, where
the plaintiff argued that her constitutional right to basic human dignity was nul-
lified by section 241 (b) of the Canadian Criminal Code. Sue Rodriguez was
forty-two years old and suffering from motor neurone disease.28 She had
requested the assistance of a doctor to commit suicide because her physical con-
dition prevented her from acting alone, but was denied help because aiding and
abetting suicide is contrary to section 241(b) of the Canadian Criminal Code.
24 S Millns, “Dwarf-Throwing and Human Dignity: A French Perspective” (1996) 18 (3) Journal
of Social, Welfare and Family Law 375–80.

25 Examples include: in California, the Death with Dignity Act 1992 and the Humane and
Dignified Death Act 1988, in New Hampshire, the Act Relative to Death with Dignity for Certain
Persons Suffering Terminal Illness 1992, and in Oregon, the Death with Dignity Act 1994.
26 Natural Death Act California, 1991, 7185.5, Legislative Findings and Declaration (d).
27 Rodriquez v. A-G British Columbia (1993) 107 DLR (4th) 342, [1993] 7 WWR 641.
28 Also known as amyotrophic lateral sclerosis or ALS.
She therefore applied for an order declaring section 241(b) invalid, on the
grounds that it violated her rights under sections 7,12, and 15(1) of the Canadian
Charter of Rights and Freedoms.
The Court of British Columbia dismissed her application, as did the Court of
Appeal of British Columbia. She appealed to the Supreme Court of Canada. The
thrust of her argument was that section 7 of the Canadian Charter of Rights and
Freedoms, which refers to “security of the person” encompasses autonomy as
well as “control over one’s physical and psychological integrity”, and that these
principles are essential to dignity. This was said to be pivotal to her case since
she was seeking a right to die with dignity. The dissenting judgments of
L’Heureux-Dube and McLachin agreed as to the significance of dignity in dying,
while Cory J declared that
“it follows that the right to die with dignity should be as well protected as is any other
aspect of the right to life. State prohibitions that would force a dreadful, painful death
on a rational but incapacitated terminally ill patient are an affront to human dignity”.29
However, the five to four majority opinion accepted that while section 241(b)
did impinge on the security of her person as defined in section 7, and thereby
encroached upon her dignity, this was not contrary to the principles of funda-
mental justice under section 7. It was argued that the state has an interest in the
protection of life and the avoidance of any devaluation of human life which
might result from permitting lives to be deliberately terminated. As a means of
protecting vulnerable individuals from potential abuse the measures in section
241 (b) were not unfair or arbitrary. Hence the correlation between dignity and
the ability to make choices concerning the time and manner of one’s own death
was recognised but ultimately not endorsed by the court. The decision rested on
the need of the state to protect the interests of those who may suffer abuse if
euthanasia were legally permitted. As in the French dwarf throwing case, indi-
vidual rights were insufficient to overrule fundamental collective interests. A
wider public interest existed and was prioritised.
The dichotomy between dignified and undignified dying was central to the
argument in Rodriguez, but the ability of euthanasia to provide a dignified
death, though endorsed in the dissenting judgments, was not scrutinised. The
definition and application of dignity remains ambiguous in the context of death
and dying as elsewhere. Paradoxically therefore, opponents of euthanasia also
speak of the centrality of dignity in dying but contend that there are alternative,
more dignified, methods of achieving the same goal.
ACHIEVING DIGNITY IN DYING
In much the same way that euthanasia is preferred by it supporters as an altern-

ative to traditional western medicine at the end of life, so the good death ideal
29
(1993) 107 DLR (4th) 342 at 413.
is revered by many ancient and eastern religions. Buddhism, Jainism, and

Hinduism, in particular, embrace the concept of the good death as a means of
achieving dignity and spiritual fulfilment at the end of life without resorting to
artificially shortening its span. The modern hospice movement, founded in
Britain, espouses a similar philosophy which emanates from a rather different
environment. Our understanding of the concept of the good death, as it relates
to euthanasia, may be usefully informed by considering these specific examples.
The Good Death in Ancient Eastern Religions
Buddhism, Jainism and Hinduism are indicative of some of the many ancient
eastern cultural and religious philosophies that inform alternative approaches
to death, dying and euthanasia. Contemporary Buddhists have extensively ques-
tioned whether euthanasia has a role to play within Buddhist philosophy.30 As
a result it is suggested that
“there is much more to Buddhist thinking on euthanasia than a purely pragmatic
concern to keep the First Precept—not to take life—while practising the virtue of
compassion”.31
It has, for example, been argued that in Buddhism “volition constitutes a man’s
essential beingness” which implies that the intrinsic value of human life lies in
the capacity for conscious choice. So, at least in principle, the Buddhist should
be in favour of “voluntary euthanasia, provided it applied within narrowly
defined limits”.32
In opposition, the doctrine of karma asserts that positive acts and thoughts
bring good karma while the opposite is true for evil or negative thinking and
conduct. These goods and evils are carried over into subsequent lives. Taking
this into account, Phillip Lecso argues that
“if the complete evolution of a karmic debt were to be disrupted by an active inter-
vention on the part of a physician, it would then need to be faced again in another
existence”.33
Accordingly, he favours the hospice model for coping with the needs of the
terminally ill because it appears to allow calm and controlled dying without
active intervention.
30 See for example, M Barnes, “Euthanasia: Buddhist Principles” (1996) 52 (2) British Medical
Bulletin 369–75, P A Lecso, “Euthanasia: a Buddhist Perspective” (1986) 25 Journal of Religion and
Health 51–7, Louis Van Loon, “A Buddhist Viewpoint”, in G C Oosthuizen, H A Shapiro, S A
Strauss (eds.) Euthanasia (1978) 65 Human Sciences Research Publication (Cape Town, Oxford
University Press, 1978) at 73–79.
31 M Barnes, “Euthanasia: Buddhist Principles” (1996) 52 (2) British Medical Bulletin 369–75, at 369.
32 Louis Van Loon, “A Buddhist Viewpoint”, in G C Oosthuizen, H A Shapiro, S A Strauss (eds.)
Euthanasia (1978) 65 Human Sciences Research Publication (Cape Town, Oxford University Press,
1978) at 73–79.
33 P A Lecso, “Euthanasia: a Buddhist Perspective” (1986) 25 Journal of Religion and Health
51–7.
Yet Barnes regards both of these conclusions as problematic for other

Buddhists; the first because it, “is only doubtfully Buddhist in its account of the
human person” while the second, Lecso’s analysis, “begs the question by failing
to acknowledge that any treatment will have karmic consequences”.34 The
implication here is that, whether or not medical intervention results directly in
death it will influence the manner and possibly the time of dying and will there-
fore disrupt the karmic cycle. The diversity of these opinions demonstrates the
absence of an established Buddhist position on euthanasia, which some com-
mentators regard as entirely appropriate.35
Jainism similarly emphasises the autonomy of the moral subject and reveres
a practice called ahimsa which extends the notion of non-violence to include
positively wishing well to all beings. Jainism also acclaims the custom known as
sallekhana: the ultimate act of heroism. Sallekhana involves fasting to the death
in a manner which is reminiscent of religious martyrdom or suicide. The process
takes the form of personal penance which is believed to purge the body of all
pernicious, detrimental and negative factors as the moment of death
approaches. It is not, however, considered to be a form of euthanasia or suicide
because it is constrained and legitimated by religion. Instead the practice of
sallekhana is described as a kind of “self-willed death” that better resembles a
religious sacrifice.36
While similar to Jainism in many respects, Buddhism forbids the taking of
ones own life in any fashion. The distinction seems to be that the Jains believe
people are shaped by their history so that the karmic process is ongoing and the
causes of karma can be identified and eliminated. By comparison, for Buddhists
karma can never be destroyed. A person’s volition or intention determines the
moral status of her act such that, “the moral quality of the act is to be deter-
mined by the interior state of the individual”.37 Actions motivated by greed or
hatred for example will always be immoral and the opposite will apply for pure
actions and deeds. Buddhists believe that human existence is rare and rebirth as
a human is rarer still. Consequently it is best approached cautiously without
attempting to exert control over the dying process. At the point of dying, a
Buddhist should ideally be conscious, rational and alert, prompting the Dalai
Lama to comment, that,
“from a Buddhist point of view, if a dying person has any chance of having positive
virtuous thoughts, it is important—and there is a purpose—for them to live even just
a few minutes longer”.38
34 M Barnes, “Euthanasia: Buddhist Principles” (1996) 52 (2) British Medical Bulletin 369–75, at
369.
35 See A Sumedho, cited in M Barnes, “Euthanasia: Buddhist Principles” (1996) 52 (2) British
Medical Bulletin 369–75, at 370, n.4.

36 P Dundas, The Jains (London, Routledge, 1992) at 155.
37 M Barnes, “Euthanasia: Buddhist Principles” (1996) 52 (2) British Medical Bulletin 369–75, at
372.
38 In P Anderson, “Good Death: Mercy, Deliverance and the Nature of Suffering” (1992)
Tricycle, The Buddhist Review 36–42.

It is crucial for Buddhists to prepare for the moment of death because the qual-
ity of that moment will dictate the prestige of the new birth. Thus,
“whichever of the two kinds of karma dominates at the time of death determines one’s
next life . . . by forgetting or ignoring death one is unworthy of human existence,
thinking only of the pleasures of this life. Lack of death awareness affects one’s way
of life and leads to regret at the time of death”.39
Within this framework, Keown’s statement, that “any affirmation of death or

choice in favour of death is a rejection of the vision of human good”40 clearly
explains why the self-willed death revered by the Jains appears to Buddhists as
a kind of escapism which cannot succeed because the karma will have to be
relived.
Traditional Hindu religious culture is informed by both the Jain and the
Buddhist religions and also emphasises the good death as a reflection of the
quality of the life that preceded it. If a good, dignified death is attained, it is per-
ceived as evidence of having lived a worthy life because “the manner of one’s
passing out-weighs all previous claims and intimations of one’s moral worth”.41
In much the same way that exponents of voluntary euthanasia advocate that the
manner of dying should reflect the inherent quality of the life lived, both ancient
and contemporary Hindu religious philosophers acknowledge death as an
ordinary occurrence which is of extraordinary significance in that “a good death
certifies a good life”.42
But a good death does not automatically happen. It is a goal to be accom-
plished, one which must be striven for and attained. The good death is achieved
when death occurs in full consciousness, in a chosen place and at a chosen time.
In ideal circumstances the chosen location will be the home, or alternatively a
holy place. As with Buddhism great significance is attached to the element of
choice and the maintenance of control,43 so if at all possible, “one must be in
command and should not be overtaken by death. To be so overtaken is the loss
of dignity”.44 Thus the final moments of life should be calm, easy and peaceful
if dignity is to be preserved. A sharp contrast to the kind of institutional death
which many in the West would seek to avoid through euthanasia, and many
more expect and fear.
Many of the insights of these traditional religions are echoed in the modern
Western understanding of euthanasia, as a means of achieving death with dig-
nity, which focuses on avoiding dependence and loss of control. Choosing to
deliberately end one’s life allows control over the time, place and method of
39
Geshe Ngawang Dhargyey, Tibetan Tradition of Mental Development (Dharamsala, Library
of Tibetan Works and Archives, 1974) at 54–5.
40
D Keown, Buddhism and Bioethics (London, Macmillan, 1995) at 187.
41
T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine 425–32.
42
T N Madan, “Living and Dying” in Non-Renunciation: Themes and Interpretations of the
Hindu Culture (New Delhi, Oxford University Press, 1987).
43
J Parry, Death and the Regeneration of Life (Cambridge, Cambridge University Press, 1982).
44
T N Madan, “Dying with Dignity” (1992) 35 (4) Social Science and Medicine 425–32.
one’s dying and explains why euthanasia appears to offer death with dignity.
Rather than active euthanasia these ancient religions advocate calm, control and
compassion as a means of achieving dignity. Those who favour good palliative
care in British hospices espouse very similar convictions.
The Hospice Movement
The network of hospices was established by Dame Cicely Saunders in 1967 after
an inspiring encounter with a terminally ill cancer patient. The patient shared
Cicely Saunders’ vision of a caring environment for the dying and left £500 in
his will so that she could begin fund-raising to transform the vision into a real-
ity. There are now in excess of 200 hospices around the country, approximately
20 of which are dedicated to the care of children.
The hospice philosophy aims to provide a holistic approach to terminal care
in response to the depersonalisation of traditional medical techniques. They
treat total pain with total care in order to overcome the physical and psycho-
logical trauma of terminal and incurable disease. Dying patients, and their fam-
ilies are treated as individuals whose particular needs are related to their
terminal condition rather than simply as the recipients of symptomatic therapy.
A positive attitude to the dying process is encouraged. Cicely Saunders explains
it thus:
“To talk of accepting death when its approach has become inevitable is not mere resig-
nation or feeble submission on the part of the patient, nor is it defeatism or neglect on
the part of the doctor. For both of them it is the very opposite of doing nothing. Our
work . . . is to alter the character of this inevitable process so that it is not seen as a
defeat of living but as a positive achievement in dying; an intensely individual achieve-
ment for the patient”.45
The development of the specialism of palliative medicine is directly attributable

to the hospice movement46 and hospices continue to carry out extensive research
in the field of palliative care and the relief of pain. Advocates of the hospice ideal
are vociferous in their defence of good palliative care for relief of the pain and dis-
tress associated with terminal illness. Such therapy is invaluable in assuaging dis-
tressing symptoms and is strongly defended as a means of achieving a good death,
and as an alternative to euthanasia. The comments of Dr Thomas Nicholson-
Lailey, following his participation in a survey of general practitioners on the sub-
ject of terminal care and euthanasia, demonstrate the success of the hospice
model, “the priority should always be to provide palliative care of the highest
45 Ciceley Saunders in S du Boulay, Ciceley Saunders (London, Hodder & Stoughton, 1994) at
174.
46 N James, “From Vision to System: the Maturing of the Hospice Movement”, in R Lee,
D Morgan (eds.), Death Rites: Law and Ethics at the End of Life (London, Routledge, 1994) 102–130
at 125.
quality rather than legalise euthanasia”.47 Nevertheless the availability of good

palliative care does not necessarily eliminate the appeal of euthanasia for the
terminally ill.
Until recently in Britain hospices have been run on a voluntary basis with
minimal Governmental financial support. Even now, when they receive around
40,000 new patients a year and support approximately 56,000 in patient
admissions, approximately 95 per cent of their funding is received from
charitable donations and voluntary organisations. They offer terminal and
respite care to those suffering from cancer, motor neurone disease and recently
AIDS but hospice care is not universally available to terminally ill and incurable
patients. People dying from a range of commonplace diseases like, multiple
sclerosis and chronic heart or lung disease have until very recently not been
eligible. Moreover, the availability of hospice places is constrained geo-
graphically because not all eligible patients reside in the immediate vicinity of a
hospice. The provision of hospice care may offer death with dignity to its recip-
ients, but its limited availability means that it is unable to negate the need for
euthanasia felt by many people suffering from terminal and incurable illness.
And, even if a perfect service existed there would still be those who would pre-
fer to opt for a quick, or immediate death, rather than palliation of symptoms.48
Furthermore, the nature of the hospice movement is changing as it is incorp-
orated into mainstream medical services. The need for accountability and
standardisation of care and services that has accompanied the growth of
consumerism within health care and society in general has inevitably brought
changes. Initially, not only were hospices funded entirely by the voluntary sec-
tor through charities and donations, but their staff were employed independ-
ently of the National Health Service. Now, in order to provide the increasingly
formalised network of terminal care, “the initial hand-to-mouth financing of
hospices has had to become more systematic”.49 Nicky James considers the
implications of these changes at length,
“With growing professionalism comes careerism and professional development.
Inevitable though these may be, they bring about a change in emphasis. The early hos-
pice pioneers who believed in the importance of their mission took it up without any
assurances for their futures. These pioneers are being, and will be replaced by those
who, albeit committed to their specialist discipline, work in a now established spe-
cialism and look for peer credibility and recognition in pay, status research and career
prospects. Traditionally the biomedical system emphasises the physical. Hospice ser-
vices which initially strived for a balance of ‘total care’ may observe the primacy of
physical interventions re-emerge”.50
47 J Coulson, “G. P.s Oppose Mercy Killing for the Dying” BMA News Review March 8 1994,
at 24.
48 B Farsides, “Palliative Care—a Euthanasia Free Zone?” (1998) 24 Journal of Medical Ethics
149–50 at 150.
49 N James, “From Vision to System: the Maturing of the Hospice Movement”, in R Lee, D Morgan,
Death Rites: Law and Ethics at the End of Life (London, Routledge, 1994) 102–130 , at 117.
50 Ibid, at 123.
Research therefore indicates that the good death ideals of the hospice move-
ment are beginning to be subverted by its institutionalisation and the conse-
quent encroachment of mainstream medicine.51 Similar concerns have long been
expressed about the hospice movement in North America.52 The infiltration of
hospice care by medical technology emphasising treatment and cure may result
in failure to achieve the good death that those who advocate palliative care as
an alternative to euthanasia seek. The methods employed by conventional med-
icine to give symptomatic control of pain usually involve sedation, and require
a level of compliance which necessarily negates the patient’s control and choice.
The intrusion of medical technology into terminal care is precisely what those
pursuing death with dignity wish to escape and explains why some consider
euthanasia to be an appropriate alternative. Bobbie Farsides has expressed con-
cerns about the potential impact of portraying hospice palliative care as an alter-
native that is vehemently opposed to euthanasia.53 For her, even though
euthanasia is not yet a legal alternative, there is danger associated with margin-
alising present or potential patients who might favour euthanasia. Were
euthanasia to become a legitimate option, it should ideally be available in an
environment where palliative care options could be exhausted first, not as an
alternative to good palliative treatment. The current hospice philosophy, which
denies that there might be a place for euthanasia, appears to preclude such an
option. Against this, and despite the close association between euthanasia and
death with dignity, the hospice movement is presently applauded for providing
dignity in dying without deliberately ending life, that is, as an alternative to
euthanasia. So can euthanasia really deliver death with dignity?
DIGNIFYING DEATH
That dignity can be applied with equal effect on either side of the euthanasia
debate demonstrates the fluidity of the concept and how nebulous it can be in
application. Indeed, in another context, human dignity has been described as
“comprehensively vague”,54 which may signal the fragility of dignity, and the
limitations of relying on this concept to approve or refute arguments favouring
euthanasia. However, in spite of its susceptibility to misinterpretation and
sophistry, dignity clearly does play a valuable role in contextualising people’s
perceptions of death and dying, especially as it appears to embody a spirit of
self-determination that advocates of voluntary euthanasia crave. But, whether
or not euthanasia can provide a dignified death requires a multifaceted analysis
51 N James, D Field, “The Routinisation of Hospice: Chrisma and Bureaucratisation”, (1992) 34

52 E K Able, “The Hospice Movement: Institutionalising Innovation” (1986)16 International
Journal of Health Services 71.

53 B Farsides, “Palliative Care—a Euthanasia Free Zone?” (1998) 24 Journal of Medical Ethics
149–50.
54 J Harris, Clones, Genes, and Immortality (Oxford, Oxford University Press, 1998) at 31.
that depends largely on how euthanasia is performed in practice, both within

present legal constraints and under any potential legal reforms.
Debates about the efficacy of euthanasia tend to regard the dignity of those
who might die by euthanasia as of primary importance. Consequently, dis-
course that supports euthanasia as a means of achieving death with dignity is
located within the dialogue of respect for individual autonomy, the need to pro-
vide alternatives to conventional modes of therapy and the desire to enable
people to exercise choice in deciding when, where and how to die. Yet the
debate is incomplete and inconclusive if this is the exclusive focus because the
dignity of those who are, or might be, instrumental in performing euthanasia,
and the wider implications for the dignity of society as a whole are of no less
significance.
Evidently some communities, notably Buddhists, Hindus and Jains, and many
within contemporary society, favour different methods of attaining dignity in
dying and consider euthanasia an insult to human dignity. But, as the discussion
of the hospice ideal demonstrates, these too may provide an inadequate response
to the perceived need for dignity in dying. The societal failure to endorse
euthanasia as a legitimate option may be regarded as destructive of human dig-
nity for those who want it, but if it were permitted, preserving the dignity of
some may be achieved only by compromising the dignity of others, most notably
carers who perform euthanasia. To paraphrase Jinnet-Sack, emphasising
euthanasia, which must be performed in the company of others, may fail to
recognise the potential sacrifice of the dignity of the practitioner.55 According to
Sampaio, “to die with dignity should be a very private decision”56 but, to die with
dignity by euthanasia in the present legal environment, often involves not only
privacy, but also complicity and subterfuge in order to avoid criminal liability.
The Voluntary Euthanasia Society graphically describes the effects of clan-
destine euthanasia, such that:
“even when patients beg them for it—doctors tend to kill only when the dying are too
far gone to consent. Thus, because voluntary euthanasia is taboo, a doctor makes the
decision himself—and the patient is killed involuntarily in the night with a syringe.
That is one price of keeping euthanasia secret”.57
Others acknowledge that a conspiratorial duplicity often exists between doctor

and patient because,
“surveys suggest the practice of active euthanasia occurs covertly, most likely involv-
ing assertive patients who are able to convince the doctor to perform euthanasia in a
private setting”.58
55
S Jinnet-Sack, “Autonomy in the Company of Others”, in A Grubb (ed.) Choices and
Decisions in Health Care (Chichester, Wiley, 1993) at 97.
56
L Sampaio, “To Die with Dignity” (1992) 35 (4) Social Science and Medicine 433–441 at 434.
57
The Voluntary Euthanasia Society, Your Ultimate Choice: The Right to Die With Dignity
(London, Souvenir Press, 1992) at 106.
58
R Hunt, “Approach of the GP to End-of-Life Decisions” (1997) The RCGP Members’
Reference Book 1997/8 266, at 267.
For a person who seeks relief from the anguish of terminal or incurable disease
active voluntary euthanasia may appear to be the most apposite means of
achieving death with dignity. A decision to this effect may be rational, reasoned
and appear entirely appropriate in the circumstances. Thus those caring for this
patient are faced with a dilemma: how to respect the patients rational
autonomous decision to die with dignity, without violating the law?
Emotionally euthanasia might appear the best mechanism for achieving dignity
in dying, and not only to the patient. Reason and emotion are both significant
in treatment decisions, especially at the end of life where compassion is a nat-
ural response to appeals made on the basis of stifled self-determination. Where
health care professionals are concerned Calman and Downie consider compas-
sion to represent a collision of “imaginative insight” and empathy. Compassion
is here distinguished from pity, which is regarded as “inappropriate to the dig-
nity of the autonomous person, especially its overtones of paternalism”,59
because compassion is believed to provoke an active, and by implication posi-
tive, response.60
The case of Dr Nigel Cox61 illustrates how this can occur in practice. Dr Cox
cared for Lillian Boyes for thirteen years, he knew her and her family well. When
she became desperately ill and repeatedly appealed to him to end her suffering,
he empathised so completely with her that his compassionate reaction to her
pleas took the form of direct action. He injected Mrs Boyes with strong potas-
sium chloride, knowing that it had no therapeutic value, and intending to cause
her death. Shortly afterwards she died. Her family believed that Dr Cox had
provided her with a merciful release from the terrible pain and distress she was
enduring and allowed her to die with dignity. However, Cox then suffered the
indignity of a criminal prosecution which resulted in his professional integrity
being questioned in court and by the General Medical Council.
A series of recent cases further illustrate the impact of the criminal justice sys-
tem on the dignity of those who kill with compassion. They also raise the debate
about the appropriateness of criminalising euthanasia.
Rachel Heath was a care worker who had witnessed the anguish of an elderly
woman in her care. Kathleen Corfield, the seventy-one year old patient, had
always been independent and lived alone until she became infirm and house-
bound because of lung cancer. Finding this existence too undignified Mrs
Corfield tried unsuccessfully to starve herself to death and succeeded only in
being hospitalised. Rachel Heath visited her in hospital and hastened her death
by administering an overdose of diamorphine through her drip infusion. Heath
was charged with attempted murder and was scheduled to appear for trial at
Winchester Crown Court in March 1996. However, on the first day of the trial
Ognall J requested that the Crown Prosecution Service reconsider the decision to
59 R S Downie, K S Calman, Healthy Respect: Ethics in Health Care (Oxford, Oxford University
Press, 1994) at 51–53.

60 Ibid.
61 R v. Cox (1992) 12 BMLR 38.
prosecute, after which no evidence was offered. The case was abandoned amidst
comments from the judge that prosecution would not be in the public interest.62
In Scotland in October 1996 Paul Brady appeared before Glasgow High Court
charged with the murder of his brother James. Brady had given his brother five
times his usual dose of temazepam with alcohol and later smothered him with a
pillow. James, who was dying from Huntingdon’s disease, had pleaded for help
to die on this and several previous occasions. The charge was later reduced to
culpable homicide and Brady received a non-custodial sentence. Referring to the
details of the case, Lord McFadyen is reported to have decided that “a custodial
sentence would be neither appropriate nor necessary and would have the effect
of adding to the considerable suffering already experienced by the family”.63 The
family was later said to have found the criminal proceedings and media report-
ing of them, which exposed the details of the family’s private life to the world,
destructive of their dignity and the dignity of the memory of their brother.64
In 1999 Dr David Moore gained notoriety as a general practitioner who
publicly claimed to have “helped a lot of people to die”. He was tried for the
murder of a Mr George Liddell, after it became known that the patient had died
following a pain relieving injection of diamorphine. During the three week trial
Dr Moore gave evidence that he had intended only “to relieve pain and suffer-
ing” and the jury took sixty-nine minutes to acquit him. Dr Moore, who claimed
not to regret speaking out, took early retirement prior to the trial. One year later
he died suddenly of a heart attack at the age of fifty-three, having suffered the
breakdown of his marriage, alcohol problems and treatment for depression.
Those who knew him professed that he seemed not to have fully recovered from
the ordeal and indignity of the trial.65
While those who do find the courage to act suffer indignities associated with
criminal and perhaps professional sanction, other carers may suffer the indig-
nity of guilt, self-reproach, and remorse because they are unwilling or unable to
perform the ultimate act of compassion. When a loved one or a respected patient
professes to prefer the solace of euthanasia to enduring dependence, those who
are unable to assist may suffer emotional turmoil which is destructive of their
own dignity. Zoe Wanamaker has described being incapable of helping some-
one you care for to die as “being on an undignified, emotional and moral
rack”.66 Jim Brady’s sister reported similar feelings; “it was awful. He was cry-
ing and I was crying but I just could not do it. I used to try to fob him off and
say, ‘What if they find a cure?’ ”67
62
See A Mollard, “Nurse Cleared of Mercy Killing”, The Daily Mail 28 March 1996, 1, and
“Euthanasia Charge Dropped”, The Guardian 28 March 1996, 3.
63
Cited in B Christie, “Man Walks Free in Scottish Euthanasia Case” (1996) 313 BMJ 961.
64
See, H Mills, “The Courage to Kill”, The Guardian 15 October 1996, 6–7, also, B Christie,
“Man Walks Free in Scottish Euthanasia Case” (1996) 313 BMJ 961.
65
N Smith, “GPs Face Ultimate Dilemma”, (October 27 2000) GP 24.
66
Z Wanamaker, Woman’s Hour BBC Radio Four, 16 May 1995, and The Long Goodbbye BBC
2 TV, screened 17 May 1995.
67
M Currie, in H Mills, “The Courage to Kill”, The Guardian 15 October 1996, 6–7, at 6.
Euthanasia is seen by many as an immoral act which is an affront to the sanc-

tity of life and humanity. The fact that it is also an illegal act prevents many pro-
fessional and emotional carers from performing it even if they perceive it as a
compassionate and otherwise appropriate response. Perhaps these turmoils and
indignities might be avoided if voluntary medical euthanasia were permissible
and regulated?
Passive euthanasia, whereby a patient dies as a result of selective non-treatment
is, as we have seen, permitted in some circumstances, but that does not mean that
death with dignity is necessarily forthcoming. Chapters three, four, and five,
described the legal mechanisms designed to enable patients to endorse their auton-
omy by withholding consent to some or all forms of medical treatment, either con-
temporaneously or in advance through a living will. Hence, where a patient is
competent and physically able to express a wish not to be treated she is, “. . . com-
pletely at liberty to decline to undergo treatment, even if the result of his doing so
will be that he will die”.68 The Canadian cases of McKay v. Bergstedt,69 and later,
B (Nancy) v. Hotel-Dieu de Quebec70 demonstrate this principle in practice.
Kenneth McKay was thirty one and had been a quadriplegic since he was
injured in a swimming accident at the age of ten. He had been cared for by his
devoted parents since the accident but his mother had died and at the time of the
case his father was terminally ill. Kenneth requested that his artificial life sup-
port be withdrawn because he feared that his already poor quality of life would
further deteriorate after his father died. He requested also that a sedative be
administered when the ventilator was removed and that a court declare that his
death was not from suicide but the result of his medical condition. Kenneth’s
right to die in this way was upheld.
Nancy B, was twenty-five years old and permanently paralysed from the neck
down due to Guillain-Barre Syndrome. She was unable to even breath without
mechanical life-support, and had been maintained by artificial respiration for
two years when she petitioned the court to order her doctors to disconnect the
ventilator. Like Kenneth McKay, Nancy B was not dying and could have sur-
vived for many more years. Endorsing the decision in McKay, Mr Justice
Dufour granted her request, and affirmed that people have the right to decline
treatment, or demand that it be withdrawn, if they perceive the conditions under
which they survive to be intolerable The right exists even if the person con-
cerned will die as a result of withdrawing the treatment but would not otherwise
be considered terminally ill. A series of cases have defined the conditions under
which courts will allow the selective non-treatment of people who are not com-
petent to decide for themselves
The American case of Re Quinlan71 concerned a young woman who was in a
permanent vegetative state (PVS). The court decided that “there comes a point
68
Airedale NHS Trust v. Bland [1993] 1 All ER 821, per Lord Keith, at 860.
69
McKay v. Bergstedt (1990) 801 P 2d 617 (Nev Sup Ct).
70
B (Nancy) v. Hotel-Dieu de Quebec (1992) 86 DLR (4th) 385, (Quebec Supreme Court).
71 (1976) NJ 355 A 2d 647.
at which the individual’s rights overcome the state’s interest” and life support
was discontinued on the basis that Quinlan herself would have sought this had
she been able. Despite switching off the respirator however, Karen Quinlan sur-
vived for a further ten years. Cruzan v. Missouri Department of Health72
addressed similar issues and allowed life support to be terminated, also on the
principle of self-determination. In Britain, Airedale NHS Trust v. Bland73 also
concerned a decision to discontinue treatment for a patient who was not com-
petent to decide for himself, but here the problem was solved through the
application of the principle of best interests to determine the extent of a doctor’s
duty to this particular patient. The treatment was invasive by its nature, and
futile because Tony Bland had no prospect of recovery. Allowing the patient to
die by withdrawing treatment would amount to an omission which would only
be unlawful if a duty of care existed between doctor and patient. The nature of
the treatment involved allowed the House of Lords to determine that it would
not be in Bland’s best interests for it to continue. Once this was established no
duty of care existed and the withdrawal of treatment was not unlawful.74 But is
it dignified to die in this way?
Decisions like these have been applauded as examples of preserving indi-
vidual dignity by saving the respective patients from indefinite futile and degrad-
ing medical treatment. Comparatively it does seem certain that further indignity
through worthless treatment has been avoided, but whether the nature of the
dying that resulted was dignified is open to question. A patient who needs a
ventilator to survive will suffocate if it is removed, and those who are deprived
of food and fluid will die from the effects of dehydration, albeit sustained by
adequate palliation of their symptoms. Kenneth McKay was aware of the fate
that awaited him and requested medication to sedate him and ease his path; that
was his choice. Karen Quinlan, Nancy Cruzan and Tony Bland were incapable
of appreciating either the details about the manner of their demise, or the plight
of the condition they existed in. This being the case it is difficult to ascribe
human dignity to either their living or the method of their dying. Both appear
inherently undignified for the patient.
Unlike active euthanasia, which exposes its practitioners to the potential
indignity of criminal prosecution and sanction, passive euthanasia through
selective non-treatment, can appear to preserve the dignity of the practitioner
but perhaps at the expense of the patient’s dignity. To avoid a Hobson’s choice
between the two some would argue that a death that results from double effect
may be more dignified for all concerned. Hunt discusses the practice in the fol-
lowing terms:
“The administration of sedatives for refractory symptoms and distress is common prac-
tice in terminal care. . . . It should be made clear that the treatment is likely to hasten
72
(1990) 110 US Supreme Court 2841.
73
Airedale NHS Trust v. Bland [1993] 1 All ER 821.
74
More than twenty subsequent cases concerning other patients in PVS in the UK have been sim-
ilarly decided.
death, the patient is less able to eat, drink, interact, mobilise, cough to clear secretions,
and is prone to infections. . . . Terminal sedation which hastens death can be justified
using the principle of double effect, or it can be regarded as slow euthanasia”.75
He recognises here that double effect may be a less dignified option because “in
some situations it is kinder to end the patient’s life quickly”, but considers it to
be good medical practice in the present legal climate. He may however, be mis-
taken in his assumption that a doctor can be justified in using the doctrine of
double effect to hasten a patient’s death by terminal sedation. It has long been
established that a doctor “is entitled to do all that is proper and necessary to
relieve pain and suffering, even if the measures he takes may incidentally shorten
human life”.76 But to use double effect to legitimate a treatment regime whose
predicted outcome is death, is to imply that the effects are not purely incidental
or anticipated, they are desired, purposeful and therefore intended. Should a
criminal prosecution be brought against a doctor in these circumstances she
may confront not only the indignity of a criminal prosecution and trial but also
a conviction for murder or manslaughter.
Some of these indignities might be avoided if the law were reformed to permit
voluntary euthanasia. Yet legal reform would also need to guard against other
indignities and potential abuses in order to protect those who may fall victim to
non-voluntary euthanasia in the guise of mercy killing. Relaxing the law too far
in favour of euthanasia in order to protect practitioners might result in inade-
quate protection for vulnerable people and death with dignity would be equally
illusive. Nevertheless the current legal approach to euthanasia serves nobody
well, leaving many patients suffering against their expressed wishes and crimin-
alising those who provide assistance in disregard of the law.
Furthermore, inconsistencies and uncertainties are readily discernible within
the present legal framework. Would every jury have reached the same outcome
in the cases of Dr Moore and Dr Arthur? Would every judge have insisted that
the Crown Prosecution Service reassess its decision to prosecute Rachel Heath?
Would the Brady’s case have received similar attention had it been heard south
of the border? And, how many clinicians expect that the terminal care they are
providing will result in death and wonder whether their genuine motives might
one day be called to account in a court of law? Answering these questions would
not be necessary if the law were reformed to permit voluntary euthanasia in cir-
cumstances where there was no doubt about the patients desire, the practition-
ers motive and the compassionate nature of the action taken. The final section
of this book will focus on how and why the law should be revised to facilitate
death with dignity.
75 R Hunt, “Approach of the GP to End-of-Life Decisions” (1997) The RCGP Members’
Reference Book 1997/8 266, at 267.

76 H Palmer, “Doctor Adams’ Trial for Murder” (1957) Crim LR 365, per Lord Devlin at 375.
Conclusions
Dignified Life, Dignified Death and
Dignified Law
Recent years have witnessed the further advancement of biotechnology and it
seems clear that modern medicine’s technical success at maintaining life increas-
ingly results in no more than prolonging death. Concerns about medicine’s abil-
ity to keep people alive inappropriately have been voiced as a result. The level
of interest in advance directives demonstrates that most people would prefer not
to be kept alive if they know they have no prospect of regaining their cognitive
humanity. When faced with the reality of situations like this, most carers gener-
ally espouse similar sentiments, regarding the indefinite continuation of futile
physical life as undignified. Doctors too appear apprehensive about merely post-
poning death in the face of terminal or incurable illnesses.
Consequently, the law is frequently being called upon to reinterpret the
boundaries between life and death. The facts of the Bland1 case were regarded
as remarkable in 1993 when the House of Lords ultimately had to decide
whether that young man should live or die. Since then however, the courts have
been involved in well over twenty subsequent cases concerning patients with a
diagnosis of permanent vegetative state. Human dignity is challenging medical
science in the courts, and the courts have consistently endorsed the primacy of
dignity over rigid legalistic interpretation and allowed life to be terminated.
Yet achieving the desired outcome has often required all the sophistry and
sleight of hand the courts could muster. Creative manipulation of concepts like
double effect and best interests has been required in order to tailor accepted
legal arguments to unacceptable medical situations. In turn this has lead to the
incongruous position where those who can no longer experience pain or any
kind of suffering, and cannot speak for themselves, now or in the future, are
legitimately allowed to die, while those who actively court death to relieve their
continuing torment are not permitted the relief they desire. Aside from the well
known objections from those who advance arguments promoting the right to
life in all circumstances, or others who fear a slippery slope to eugenics, public
sympathy appears to support the outcomes of the PVS cases. Scant attention is
paid to the implications of how death will occur following the withdrawal of
treatment, or why those who can articulate a wish for a similar outcome for
themselves are not legally allowed it.
1 Airedale NHS Trust v. Bland [1993] 1 All ER 821.

166 Dignified Life, Death and Law
The chapters of this book have outlined the ways in which various clinical
practices at the end of life relate to euthanasia, and the law’s approach to them.
Through an analysis of the law of consent and the legal response to advance
directives, some of the mechanisms by which people can maintain control over
their own dying within the present legal framework have been identified. The
ability to exercise choice, has been established as central to the concept of death
with dignity, but the limitations on available choice in the current legal climate
reveals a need for legal reform in favour of euthanasia. The shape and extent of
any reform is largely dependent upon how euthanasia is defined and, what kind
of conduct is accepted as proper medical care rather than clinical killing.
Under the present law, any kind of conduct that aims to cause death amounts
to homicide. As active voluntary euthanasia can certainly be described as an
intentional action that causes death it will clearly fall within this definition.
Whether the conduct amounts to mercy killing or assisted suicide is immaterial.
Both are proscribed and attract hefty custodial sentences. Mercy killing is
regarded as murder and carries a mandatory life sentence, while a maximum
sentence of fourteen years imprisonment attaches to assisted suicide. The con-
sent or request of the “victim” offers no defence in either crime, neither does the
fact that the action was performed for compassionate motives. According to the
law, no person may deliberately end the life of another, even at the repeated
request of that person or in the face of a considered and enduring decision. Yet
as dying becomes more medicalised than ever, people continue to conflate
euthanasia and death with dignity, resulting in a perceived need for permissive
reform.
Chapter five described how the preservation of dignity through autonomous
choice has in recent years been the stimulus for much interest in living wills, or
advance directives. As a result, some jurisdictions have introduced legislation
supporting the use of advance directives or living wills, confirming their
legitimacy. In Britain, living wills have been discussed in a number of cases,2
prompting the Law Commission to give careful consideration to their use in spe-
cific medical circumstances. Comprehensive recommendations have subse-
quently been made with regard to their potential operation and legal status.3
Additionally, a Code of Practice has been formulated by the British Medical
Association and the Royal College of Nursing, advising medical practitioners
how to respond to patients with advance directives.
The possibility of legislative intervention supporting the use of living wills has
also been mooted however, with an opinion poll conducted in 1998 demon-
strating a high level of public support for the potential enactment of legislation
to give living wills the binding force of law.4 Specifically, 1,960 adults were
2
Airedale NHS Trust v. Bland [1993] 1 All ER 821, Re T (Adult: Refusal of Treatment) [1993]
Fam 95, Re C (Adult Refusal of Treatment) [1994] 1 WLR 290.
3
Law Commission Report 231, Mental Incapacity: Item 9 of the Fourth Programme of Law
Reform: Mentally Incapacitated Adults (London, HMSO, 1995) at paras 5.1–5.39.
4
See C Dyer, “UK Public Calls for Legislation over Living Wills” (1998) 316 BMJ 9551.
Dignified Life, Death and Law 167
asked their views on whether Parliament should pass an act to ensure that
doctors comply with advanced treatment decisions made in writing by people
who could no longer speak for themselves. Sixty-five per cent of those surveyed
favoured the introduction of a law making the provisions in advance directives
binding on doctors, while 21 per cent disapproved. In practice the effect of such
a law would of course be minimal, since common law already requires medical
professionals to observe valid and applicable living wills.5 Accordingly, if the
results of this poll represent a true reflection of public understanding of the
issues, a widespread public awareness campaign explaining the relevance and
applicability of living wills would be more apposite than a statute reiterating
principles that are already enshrined in common law.
Increased use of advance directives would certainly facilitate easier and more
reliable terminal decision-making, especially where selective non-treatment or
passive euthanasia was being considered, but they would be of little benefit to
those who retain competence. The actions of clinicians accused of homicide fol-
lowing treatment withdrawal or double effect might be legitimated if the pre-
sentation of a valid living will were able to provide evidence of a patient’s
intentions prior to becoming incapacitated, but no advance directive can sanc-
tion deliberate acts that lead to death. Perhaps more pressing then, is the need
to safeguard the interests of those who still have capacity and seek voluntary
euthanasia, while simultaneously protecting the medical professionals who
assist them from criminal sanction. A variety of methods of achieving this end
have been suggested in recent years.
For example, the creation of an entirely new criminal offence of mercy killing
would avoid labelling those who perform euthanasia as murderers. In 1980 the
Criminal Law Revision Committee6 discussed this possibility within the terms
of a proposal made two years previously in the Twelfth Report of the
Committee. That proposal suggested that a person who unlawfully killed
another out of compassion, believing them to be either “subject to great pain or
suffering”, or “permanently helpless from bodily or mental incapacity”, or
“subject to rapid and incurable bodily or mental degeneration”, should be liable
only for a maximum of two years imprisonment. A significant level of public
dissent resulted from the proposal however, leading the committee to conclude
in the Fourteenth Report that:
“when we came to examine our suggestion again for the purposes of this report, we
decided unanimously that we should withdraw it, if only on the ground that it is too
controversial for the exercise in law reform on which we are engaged. We do not rec-
ommend that there should be an offence of mercy killing”.7
5
Ch. 5 offers a detailed discussion of the legal status of advance directives.
6
Criminal Law Revision Committee, 14th Report, Offences Against the Person (1980) Cmnd
7844, section F, at 53.
7
Ibid.
The 1994 House of Lords Select Committee on Medical Ethics, considered a

similar proposal for the creation of a new offence of mercy killing, and also
failed to recommend it.8 Their position was endorsed in the Government
Response to the Report of the Select Committee on Medical Ethics.9 But the
opinions and practices prevalent then may be less entrenched in the early years
of the twenty-first century.
The series of high profile cases where the courts have sanctioned clinical deci-
sions to allow patients to die, coupled with greater awareness of end of life
issues, suggest that the political and social climate within which the Criminal
Law Revision Committee and the Select Committee on Medical Ethics decided
against introducing a new offence of mercy killing is no longer wholly applica-
ble. However, if the creation of an entirely new offence of this type is still too
radical then a more acceptable alternative might be to introduce euthanasia or
mercy killing as a special defence in cases of homicide, as Tim Helme and Nicola
Padfield have postulated.
According to their model, culpability could be defined without the need to
analyse issues of causation or to distinguish between acts and omissions.10
Clearly, if such a defence were available, there would be less of a need for the
court to agonise over whether the cause of death had been a positive act which
was outside of the scope of proper medical care, or an omission that constituted
a breach of the duty of care. But it would remain essential to establish the fac-
tual cause of death before liability could be attached. If the death could be
attributed to natural causes there would be no need for a sophisticated defence
to apply. In practice this defence could operate in one of two ways; it might
reduce a charge of murder to manslaughter, allowing for flexibility in sentenc-
ing, or it might provide a complete defence. Either way it would still leave clin-
icians vulnerable to the vagaries of the criminal justice system.
The same problem arises with one further possibility for legal reform, that is
the abolition of the mandatory life sentence for murder. Here judges would be
empowered to exercise discretion in sanctioning those convicted for practising
euthanasia.11 Such a reform could operate for all cases of murder so that the
mandatory life sentence was abolished absolutely, or it might operate selectively
whereby judges were given the option to dispense with the mandatory life sen-
tence only in murder cases where a mercy killing had obviously occurred.12
Leniency could be extended due to the particular circumstances of the case but
8 House of Lords Select Committee on Medical Ethics, (1994) HL 21-II Para 260.
9 Government Response to the Report of the Select Committee on Medical Ethics Cmnd 2553
(1994).
10 T Helme, N Padfield, “Setting Euthanasia on the Level” (1993) XV (1) Liverpool Law Review
75.
11 The 1994 House of Lords Select Committee on Medical Ethics strongly endorsed the recom-
mendations of an earlier select committee that the mandatory life sentence for murder be abolished,
at Para 294, but the Government Response to the Select Committee Report was equally vociferous
in its opposition to this suggestion.
12 M Otlowski, “Active Voluntary Euthanasia” (1994) 2 Med LR 161.
a criminal conviction would attach, and with it the inevitable stigma and pro-
fessional consequences would follow.
Each of these proposed reforms could help to provide greater dignity for some
of the participants in the dying process, but perhaps not all. The dying would
benefit if reform allowed for greater openness so that they felt more able to voice
their concerns about dying or to request assistance, and the carers could benefit
from increased protection against criminal conviction. However, it is clear that
without effective safeguards people who might already be vulnerable to abuse
could be placed in greater jeopardy if the law were relaxed too far in favour of
euthanasia. Opponents of euthanasia argue that no legislative framework could
provide sufficient protection to save the vulnerable from abuse, or society from
a decline into moral decay. George Fletcher’s concerns about the ability of indi-
viduals to resist the corrupting influences of performing actions that society has
regarded as taboo are relevant here:
“the self-destructive individual who induces another to kill or mutilate him implicates
the latter in the violation of a significant social taboo. The person carrying out the
killing or mutilation crosses the threshold into a realm of conduct that, the second
time, might be more easily carried out. And the second time it might not be particu-
larly significant whether the victim consents or not”.13
For Cicely Saunders, concerns focus more on the dangers that particular groups
within society might be exposed to if voluntary euthanasia were permitted and
she argues that
“to make voluntary euthanasia lawful would be an irresponsible act, hindering help,
pressuring the vulnerable, abrogating our true respect and responsibility to the frail
and old, the disabled and the dying”.14
Regardless of the apparent dangers however, the need for dignity in dying con-
tinues to be expressed through the demands of patients for greater autonomy to
select the time and method of dying. Conventional medical treatment is con-
strained by the law and failing to adequately address these concerns. While the
arguments for and against the legalisation of euthanasia are polarised on the basis
of religion, ethics and politics, dignity in dying remains inexplicably linked with
euthanasia in the public consciousness. Physical pain constitutes just one factor in
the equation, with emotional pain assuming greater significance for those who
wish to avoid dependence and therefore pursue death with dignity through
euthanasia. But calls for reforms permitting euthanasia are also set against the
backdrop of dissent about unauthorised “do not resuscitate orders”, and concerns
about under-valuing some lives in favour of others. Within the context of caring
for the dying, neither example is necessarily dignified, but the criminal law may
not be the most appropriate mechanism for achieving justice either for those who
want euthanasia for themselves, or for those who assist its recipients.
13 G P Fletcher, Rethinking Criminal Law (Boston, Little Brown, 1978) at 770–71.

14 Cited in, Lord Goff, “A Matter of Life and Death” (1995) Med LR 1–21, at 17.
Alan Norrie has considered the limitations on the ability of the criminal just-
ice system to deliver justice generally.15 He argues that the theoretical basis of
the criminal justice system and the practicalities of modern life have diverged in
such a way that the accepted rationale that crime deserves punishment may not
always be legitimate. It may not always be appropriate simply to apportion
blame and allocate punishment to the individuals involved in criminal conduct.
Norrie argues that society as a whole may be required to shoulder some of the
responsibility through what he describes as “relational justice”, where the
social, moral and political context of the conduct in question is considered
alongside its criminal definition. This conception of justice involves:
“a sense of the particularity of human life, a sense of social engagement, and a sense
of responsibility that is contextualised both in terms of looking at the wrongdoer’s
past acts and their provenance, and to his relationship with a community that includes
his victim”.16
Euthanasia presents a perfect example of conduct that is decontextualised by the

law in this way, and demonstrates the hesitance with which the law reflects and
responds to the moral and political contexts within which changes in social atti-
tudes occur.
Recent technological advances have provided a context within which many
ordinary people are calling for legal reform because they fear that they may be
robbed of their autonomy and dignity as their lives draw to an end. In an age
when people value their independence and strive to live independent and ful-
filled lives it is important “that life ends appropriately, that death keeps faith
with the way we want to have lived”.17 Here Ronald Dworkin observes that
death is “not only the start of nothing but the end of everything”18 and therefore
it should be accomplished in a manner compatible with the ideals sought during
life. In many respects his interpretation reflects the good death ideal of the reli-
gious philosophies discussed earlier and those of the founders of the hospice
movement. Both are contrary to the kind of death often achieved through the
practice of modern medicine and within the law, yet Dworkin’s proposals for
immediate resolutions are more in accord with those of Derek Humphry and
The Voluntary Euthanasia Society than with Buddhism and the Christian tradi-
tion of the hospice movement. A quick and certain death may be more dignified
than a slow lingering one.
The tensions inherent in Dworkin’s approach are also visible in society more
generally, causing James to marvel at the fact that these quite distinct
approaches have developed simultaneously. In his view,
15
A Norrie, “The Limits of Justice: Finding Fault in the Criminal Law” (1996) 59 Modern Law
Review 540–556.
16
Ibid, at 555.
17
R Dworkin, Life’s Dominion (London, HarperCollins, 1993) at 179.
18 Ibid.
“it will be interesting to see how history interprets the morality of a society in which
two contrasting groups, each with deeply committed views on human dignity, develop
in parallel”.19
Perhaps this diversity of opinions and approaches is due to the complex rela-
tionship between dignity and dying, which cannot be explained simply in terms
of medical care or symptomatic relief. The dignity debate revolves around ques-
tions of how, where and when to die as much as to die or not to die. People fear
a slow lingering death because such a death tends to be associated with a grad-
ual loss of control and dignity. So some will respond by wishing for an immedi-
ate release in an effort to retain their dignity, while others consider the process
of dying over an extended period of time as providing, “a chance to be able to
come to terms with dying and with yourself, and other people, to sort things out
in your life over a period of time; to round off your life”.20 Both may be dignity
enhancing.
Of course, if euthanasia were available one could make dignified plans about
the time and place of dying in advance, which in itself might facilitate the oppor-
tunity to make financial and emotional preparations for the inevitable death, as
well as avoiding unwelcome suffering. Equally, one might find solace and dig-
nity in resisting euthanasia, preferring to exercise choice by living every moment
that life offers.
It is the fluidity of the concept of human dignity that enables the hospice
movement and the pro-euthanasia lobby to share the common goal of avoiding
pointless pain and suffering at the end of life. The solutions they offer remain
poles apart however, and euthanasia remains an intractable problem which
apparently defies social or legal resolution. The need for individual dignity in
dying is strongly felt within society but can be achieved in vastly different ways,
depending on the medical, religious and philosophical imperatives of those con-
cerned. Individualistic solutions however focus on the needs of the dying, often
to the detriment of others who share the experience. Sampaio articulates the
nature of the problem of death with dignity very eloquently:
“Guidelines of how to die with dignity cannot be built on the individualism of John
Locke or the humanitarianism ideals of Jean Jacques Rousseau but rather on a sense
of civil responsibility to oneself and to others. Most of all, they must be based on never
losing sight of the fact that their basic ‘raison d’etre’ is not to leave the helpless to their
misery”.21
One conclusion to draw from Sampaio’s inference is that legal reform permit-
ting euthanasia is necessary so that society as a whole can take responsibility for
19 N James, “From Vision to a System: the Maturing of the Hospice Movement”, in R Lee and
D Morgan, Death Rites: Law and Ethics at the End of Life (London, Routledge, 1994) 102–130 at
125.
20 N Kfir, M Slevin, Challenging Cancer—From Chaos to Control (London, Tavistock, 1991) at
53.
21 L Sampaio, “To Die with Dignity” (1992) 35 (4) Social Science and Medicine 433–41, at 433.
easing people gently into that good night. However even to do so from his altru-
istic motivation may present dangers for some groups within society.
Located within the context of euthanasia, Fletcher’s words above warn
against crossing the Rubicon that separates mercy from killing, suggesting that
once a practice that was stigmatised becomes accepted it presents dangers for
society as a whole, not just for individuals. Cicely Saunders is more precise in
her fears, believing that legalising euthanasia will undermine the position of par-
ticular groups. This is also a theme that recurs in Sampaio’s analysis of eutha-
nasia and death with dignity. He concludes that whether or not euthanasia will
ultimately gain legitimacy is likely to be determined mainly by economic imper-
atives. For him:
“in the industrialized part of the world there is the danger that as the economic prob-
lems worsen the powers that be might undergo an overnight ‘conversion’ and encour-
age the death of those who are not economically productive”.22
Such a conversion is, he believes, likely to be informed by the kind of arguments

made here and based upon notions of enhancing the dignity of the dying and
protecting those who help others to die, but have a more sinister hidden
agenda. With escalating costs placing market pressures on over extended
health-care services this concern is only too valid. Euthanasia could become
a method of resource-led population control, in much the same way as
infanticide has been practised in various societies throughout the ages.23
Furthermore, Cicely Saunders is right in her assessment that the impact may
well be greater on some groups within society than others. Life expectancy in
the United Kingdom has increased by twenty-five years during this century, and
in recent years the number of people aged eighty and over has nearly trebled.24
The numbers of people suffering disabling, chronic, and terminal disease is
inevitably rising as the population ages. Simultaneously statistics demonstrate
that women live longer than men so that in 1992 for example, 25 per cent of
men who died did so in their own homes compared with only 19 per cent of
women, with 13 per cent of men dying in communal establishments as opposed
to 25 per cent of women.25
Cuts in welfare impact crucially upon the elderly who are now required to
provide for more of their own care, either through contributions during their
working lives or by the clawing back of their accumulated assets. The indignity
of dependence coupled with the perceived financial burden to family and the
state may be sufficient to encourage “the frail and old, the disabled and the
22 L Sampaio, “To Die with Dignity” (1992) 35 (4) Social Science and Medicine 433–41, at 433.
23 For an exposition of the prevalence of infanticide see M Harris, Cannibals and Kings: The
Origins of Culture (London, Collins, 1978).
24 Social Trends, Table 1.2, Age sex structure of the population (London, HMSO, 1990) at 24.
25 Office of Population Census and Surveys, Mortality Statistics, General: Review of the
Registrar General on Death in England and Wales 1992 (London, HMSO, 1994) Table 7.
dying”26 to consider euthanasia as an alternative.27 If active euthanasia were to

be permitted as a right, what is to prevent the endorsement of this right being
translated into a social duty? How long will it be before those who seek eutha-
nasia in order to avoid being a burden lose the right to continue living until the
natural end of their lives?
Despite these valid concerns the pressure to relax the law and permit eutha-
nasia for individuals remains, while the ability of medicine to maintain life
beyond what many perceive to be dignified bounds raises questions that go to
the root of defining what kinds of human behaviour ought to be criminalised.28
Killing is rightly proscribed but voluntary euthanasia may be slipping beyond
the scope of the criminal law if society’s morality is no longer opposed to its
practice. Yet the law needs to protect the vulnerable at the same time as enabling
the dying to exercise their autonomy through euthanasia and protecting those
who compassionately assist them.
Earlier in this chapter various types of reforms were discussed ranging from a
new statutory offence of mercy killing, through the introduction of a special
defence to homicide, to the abolition of the mandatory life sentence for murder.
Either a new offence or a new defence would require a legislative resolution
which would be entirely dependent upon political will. The emotive nature of
the euthanasia debate and the voracity of its opponents dictate that
Parliamentary intervention of this nature is unlikely to be forthcoming in the
near future. Equally, the rigidity of statutory composition may not provide the
most accessible format for sympathetic judicial interpretation of the issues aris-
ing from euthanasia. An incremental approach, like that adopted in the
Netherlands in recent years, would give the opportunity to determine how much
sustained support there is for euthanasia in practice, beyond the purely theoret-
ical endorsement it currently attracts. In this way a gradual relaxation of the
present legal restrictions could facilitate a highly regulated system of medically
assisted dying for those who require it, while providing a high level of protec-
tion for everybody. It should be possible to adopt a model similar to the one that
operates in Holland, where, in appropriate circumstances, and subject to strict
guidelines, euthanasia could be made available to those who truly and consist-
ently desire it. In the meantime, judicial discretion in sentencing would appear
to offer the most immediately socially acceptable solution. This would enable
the strengths of the common law to prevail, while offering maximum flexibility
in order to safeguard the needs of the vulnerable. In combination with greater
recognition and adherence to individual advance directives, personal autonomy
would be enhanced without compromising compassion or caring. Ultimately a
26 See Lord Goff, “A Matter of Life and Death” (1995) Medical Law Review 1–21, at 17.
27 For further discussion see, H Biggs, “I Don’t Want to be a Burden! A Feminist Reflects on
Women’s Experiences of Death and Dying” in S Sheldon & M Thomson (eds.) Feminist Perspectives
on Health Care Law (London, Cavendish, 1998) at 277–293.
28 For a discussion of some of the tensions present when one conduct is either criminal or legiti-
mate depending on the context, see Jean Davies, “Raping and Making Love are Different Concepts;
so are Killing and Euthanasia” (1988) 14 Journal of Medical Ethics 148–9.
more dignified alternative could be accessible to those who seek euthanasia for
themselves and those who practice it. Nobody would need to feel as though they
are dying in an age of eternal life.29
29
B D Cohen, Karen Ann Quinlan; Dying in an Age of Eternal Life (New York, Nash, 1976).
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Index
Able, 157 Bridgeman, 126, 132
abortion, 108–9, 113 British Humanist Society, 59
act/omission distinction, 12, 14–15, 28, 51–4 Brock, 43–4
Addington-Hall, 30, 96, 147–8 Brody (H), 61
advanced directives–see living will Brody (J), 9
Age Concern, 126 Buddhism, 152–4, 158, 170
AIDS sufferers, 31, 119, 156
Alverez, 105 Cain, 116
Alverstone, Lord, CJ, 84 Calman, 159
ambulance staff, 137–8 Campbell, 19
Anderson, 153 Canada, 116, 139–42, 144, 150, 161
Andrews, 40 Canadian Charter of Rights and Freedoms,
Angell, 147 151
anticipatory decisions, 124–7 Canadian Criminal Code, 107, 150
Applebaum, 92, 116 Manitoba Law Reform Commission, 133
Arney, 148 cancer patients, 10
Ashworth, 25, 110 Capron, 15, 134–5
Augustine, 100 Cardozo J, 69, 80, 95
Australia, 62, 108, 119 cause of death, 45–51
Northern Territory, 14, 62–3, 108 Charatan, 64
South Australia, 115 Charney, 42
autonomy, 3–5, 10–11, 25, 29–31, 36, 44, 64, Childress, 111
67, 69, 92–9, 104, 112–13, 115, 128, 131, choice, 5, 15, 26, 29, 31, 36, 69, 96, 115, 134,
134, 144, 169–70, 173 145, 154
autonomous choices, 3, 15, 95, 98, 112, 114 and autonomy, 3, 15, 95, 98, 112, 114
and suicide, 100–7 rational choice, 105
of all parties, 113 Christie, 66, 160
of pregnant women, 126–7 civil liability, 70, 171
Clark, 44, 106–7
Barlow, 129 Clarkson, 58
Barnes, 152–3 clinical discretion, 110–11, 113
Barraclough, 100 clinical freedom. 137
Bartlett, 17 clinically assisted death, 35–8
basic care, 45, 135 Code of Practice, 137, 139, 166
Beauchamp, 111 cognitive death, 20, 24–5
Beecher, 16, 41 cognitive function, 19
Benyon, 19, 52 concepts:
Bergen, 148 creative manipulation of, 165
best interests, 36, 45, 53–4, 57, 87–94, 119–20, Cohen (B), 174
134, 165 Cohen (S), 37
Biggs, 62, 64, 96, 173 Cole, 97
biotechnology, 2, 165 common law, 14, 93, 95, 108, 116, 143–4
Blackstone, 100 consent, 6, 13, 30, 36, 44, 47–8, 67, 69–70,
BMA, 45, 54, 83, 135, 139, 142–4, 166 93–4, 103, 111, 116, 124, 161, 166
Committee for Medical Ethics, 40 capacity, 80–91, 106, 116–17, 128–34
Bourgeault, 30, 146 civil liability in absence of, 70–1
Boyle, 39 consent forms, 103
brain stem death, 18, 20, 23–4, 41, 49–50 criminal liability and consent, 71–3
Brazier, 57, 71, 98, 102, 112, 129 informed consent, 75–80, 103–4, 112, 136,
Bridge Lord, 77, 88 142
184 Index
consent (cont.): doctors–see health care professionals

present law of consent, 73–4 doctor/patient relationship, 6, 15, 44, 77, 144
substituted judgement, 91–3 doctor’s duty of care, 53, 73–80, 88–90
treatment without, 83–93 doctor’s responsibilities, 2, 10, 66
valid consent, 74–80 doctrine of double effect, 4–5, 12, 28–9, 38, 45,
constitutional law, 108 54–9, 65, 162–3, 165, 167
consumerism in health care, 148 Donaldson Lord, 30, 116, 124, 131
Cooper, 50 do not resuscitate orders, 5, 13, 169
Cory J, 151 Downie, 159
Coulson, 156 Doyal, 99, 104, 112
Council of Europe: Driscoll, 15, 145
Convention on Human Rights and du Boulay, 155
Biomedicine, 149 Duff, 58–9
Court of Protection, 120 Dufour J, 161
Craig, 54 Dundas, 153
Cranford, 39, 41 Dworkin, 9, 29, 145, 170
criminal law, 4–5, 10, 15, 36, 45, 55–8, 66, 71, Dyer, 166
94, 108–9, 169, 173
homicide, 6, 16, 25–9, 73, 159–60, 163, 166–7 ECHR, 89
inconsistency of, 28 economic imperatives, 172
murder/manslaughter distinction, 4 Emanuel, 6, 116
proposed abolition of mandatory life emergency, 83–7, 103
sentence for murder, 168–9 euthanasia:
Criminal Law Revision Committee, 167–8 ability to provide death with dignity, 157–63
Crisp, 43 active euthanasia, 12, 30, 59
Currie, 160 as death with dignity, 29–33
as duty, 33
Dalai Lama, 153 clandestine euthanasia, 158
Daley, 20 concept of the good death, 151–7, 170
Davies, 173 decontextualised by the law, 170
death, 145–6 definition of, 11–13
cultural perceptions of, 16 incremental approach to, 173
definition of, 11, 16–25, 165 involuntary euthanasia, 12
good death, 151–7, 170 non-voluntary euthanasia, 12
in modern Western culture, 9 passive euthanasia, 12, 30, 161–2
legal definition of, 20–5 protection for the vulnerable, 6, 169, 172–3
philosophical perceptions of, 16, 20, 24 public support for, 11
religious perceptions of, 16, 20 surveys regarding, 147–9
death with dignity (see also dignity), 11–12, voluntary euthanasia, 69
14–16, 26–7, 29, 31, 35, 38, 63–4, 66–7, 69, excessive treatment, 9
98, 100, 114, 118, 144–6, 151, 157–63, 166,
169, 171 family law, 87
destiny: Farsides, 38, 156–7
control of, 3, 106 Farquharson J, 58
Devereux, 132 Feinberg, 25
Devlin Lord, 26, 28, 65, 163 Fenigsen, 147
Dickenson, 3, 102, 105, 113, 132 Fennell, 130
Diesfeld, 62, 64 Field, 158
dignity (see also death with dignity), 1, 3–7, 19, Finnis, 41
24, 59, 64, 67, 94, 96, 105–7, 122, 145, Fleming, 70
157, 165, 169–70, 172, 174 Fletcher (G), 169, 172
conflicting views of, 171 Fletcher (J), 40
definition of, 149–51, 157 France, 101, 149–50
different connotations of, 32–3 Fried, 56
the need for, 146–9
Dillon, 149 Gallagher, 32
Diplock Lord, 77 General Medical Council, 65, 159
Docker, 122 general practitioners, 137–9, 143
Index 185
Geobel, 108 Jones, 132

Germany, 14 judicial interpretations, 108
Gibson, 122 juries, 26–7, 58, 61, 163
Gillon, 95, 98, 104, 106
Lord Goff, 24, 45, 50, 71, 73, 84, 86–9, 92, 149, Kant, 11
169, 173 Kay J, 85
Golligher, 79 Keating, 58
Gordon, 129 Keith Lord, 36, 77, 85, 96, 124, 161
Grey, 113 Kelner, 30, 146
Griffiths, 14, 147 Kennedy, 9, 20–1, 36, 72, 78, 88–9, 95, 97–8,
Grubb, 9, 21, 31, 36, 72, 106, 117, 120–1, 102, 110, 117, 121, 126
125–6, 158 Keown, 14–15, 39–40, 154
Gutmann, 64, 97 Kerr LJ, 78
Kerridge, 41
Halpin, 58 Kevorkian, 32, 61–2, 64, 97
Hamilton, 112 Keyserlingk, 19
handicapped infants, 26–8, 31 Kfir, 171
harm, 25 killing/caring dichotomy, 35, 38
Harris (J), 59, 97–8, 112, 157 Kjellstrand, 61
Harris (M), 172 Klein, 43
Hart, 46, 54–5 Kolnai, 149
Hatano, 40, 42 Kostensa, 148
Haverkate, 148 Kuse, 5
health care, 1–2
health care professionals, 2, 5–6, 31–2, 53, 67, Lam, 149
79, 115, 121, 136–7, 159 Lamb, 137
heart transplant, 17 Lambert, 122
Helme, 11, 168 Lane Lord, 22, 49, 72
Hickman, 13 Law Commission, 45, 74, 90–1, 93, 115, 117,
Higashi, 40, 42 120, 123, 125–8, 132–3, 135–6, 143, 166
Hinduism, 152, 154, 158 law reform–see legislative reform
Holland, 1, 13–14, 36, 62, 108, 113, 147, 173 Lawton LJ, 48
Dutch Government, 147 Lee, 45, 116, 125, 144, 146, 155–6, 171
Remmelink study, 147–8 legislative reform, 5–7, 9, 12–13, 33, 93, 166,
Honoré, 46 173
Hope, 43 public support for, 66
Horder, 61 Lesco, 152–3
hospice movement, 33, 39, 152, 155–8, 170–1 Lewis, 42
hospital consultants, 137 L’Heureux-Dube, 151
hospital staff, 138 Lidz, 92
human rights, 89, 149 life:
Human Rights Act, 1, 89 definition of, 11, 16, 19, 24–5, 41, 165
Humphry, 10, 170 respect for value of, 145
hunger strike, 85 sanctity of, 15, 39, 41
Hunt, 147, 158, 163 life expectancy, 9
life support system, 19, 21–5, 49–50, 162
Illich, 146 Littlewood, 40
Ingelfinger, 98, 112 living wills, 3–4, 6, 30, 67, 70, 93–4, 113–144,
Institute of Medical Ethics, 11, 41 161, 166–7
Irerson, 138 alteration and revocation of, 136
Irvine Lord, 148 and clinical judgement, 117
and health-care professionals, 137–43
Jainism, 152–3, 158 Code of Practice, 139, 166
James, 155–7, 170–1 competency, 128–34
Jecker, 116 contrary to best interests, 134–7
Jennet, 39–40 form and content of, 118–19, 121–4
Jinnet-Sack, 31, 106, 158 survey regarding, 166–7
Johnson J, 23–4, 86, 149 validity of, 128
186 Index
Lloyd Lord, 78 Netherlands–see Holland

Lobjoit, 102 Newdick, 42, 79
Looman, 147 Ngawang Dhargyey, 154
Lovat, 41 Nicholson-Lailey, 155
Lynn, 134–5 Nicolson, 41
Nitschke, 62
Macdonald, 6 Nord, 43
Madan, 29, 154 Norman, 57
Maddocks, 147 Norrie, 170
Maizel, 116 nurses, 138
Mars-Jones J, 55 Nys, 14
Mason, 43, 66
Mayor, 102 Ogilvie, 64
McCall-Smith, 4, 43, 66 Ognall J, 56, 65–6, 159
McFadyen Lord, 66, 160 Olinger, 19
McLachin, 151 omission, 12, 14–15, 28
McLean, 2, 78, 98, 122 duty to act, 51–4
McLeod, 147 O’Neill, 99, 113
McNamara, 146 Onwuteaka-Philipsen, 148
medical advances, 2, 9–11, 17–18, 21, 24–5, Oosthuizen, 152
145–6, 165, 170 Otlowski, 63, 168
medical power, 6
medical practice, 4 Padfield, 168
medical professionals–see health care palliative care, 38–9, 41–3, 45, 55, 62, 155–7
professionals Pallis, 17
Medical Royal Colleges, 17–18, 24 para-medics, 137–8
Meisel, 92 Palmer, 26, 28, 56, 163
mental disability, 133 Parker Lord CJ, 47
Mepham, 116, 118 Parry, 154
mercy killing, 12, 29, 38, 60, 64–6, 166 paternalism, 77, 81, 98, 102–3, 111–13, 144, 159
proposed criminal offence, 167–8 patients:
Meyers, 47 patients charter, 35, 44
Mill, 25, 96 rights of, 2, 10, 66
Millns, 150 Patrick, 116
Mills, 160 Pearlman, 116
Mitchell, 41 permanent vegetative state, 19–20, 29, 31,
Mollard, 66, 160 39–42, 45, 49, 53–4, 89, 161–2, 165
Molloy, 116, 118 persistent vegetative state–see permanent
Montgomery, 116, 125, 144 vegetative state
moral choices, 2–3 physical disability, 107–8
moral decay, 169 physiotherapists, 137
moral interpretations, 25 Pijneborg, 147
Morgan, 45, 116, 125–6, 142, 144, 146, 155–6, Plum, 39
171 poor medical practice, 73
Morland J, 79 Potts, 63–4
motive, 57–9, 61, 65–7 power of attorney, 93, 119–20
Munday, 40 Prevention of Euthanasia Bill, 13, 28, 35
Murphy, J, 82 Price, 59
Murphy, L, 40 Pritchard, 100–2, 105, 112
Mustill Lord, 50, 53, 72, 90, 92 proxy decision-making, 92, 119–21
Myers, 21 public interest, 86, 151, 160
Nathan Lord, 53 quality adjusted life years, 43

National Health Service, 137, 156 quality of life, 11
necessity, 83–7 Quill, 3, 61, 64, 96
negligent medical treatment, 46–7, 53, 73–80,
88–90 radiographers, 137
Neil LJ, 78 reasonable prospect of recovery, 123
Index 187
refusal of treatment, 116, 118 physician assisted suicide, 60–4, 67

relatives, 37, 86, 138, 143 taboos on, 100–1
relief of pain and suffering, 26, 28, 35, 55–7, 163 Sumedho, 153
responsibility, 59, 171 surgical consent form, 121
Ridley, 102, 105 Swift J, 71–2
Roach, 147 Switzerland, 14
Roberts (E), 129, 131
Roberts (J), 61 Taylor-Watson, 15, 145
Robins JA, 140–1 Teeling-Smith, 43
Robinson, 86 Templeman Lord, 71
Royal College of Nurses, 139, 166 Terrence Higgins Trust, 118, 125
Royal College of Physicians, 41, 54 therapeutic decision-making:
Ryan, 3 value judgements in, 110–12
Thomson, 96, 126, 132, 173
Sakato, 40, 42 Thorpe J, 130
Sampaio, 145, 158, 171–2 Tickner, 79, 112
Sanders, 45, 146 Toolis, 27
Sartorius, 98
Saunders, 155, 169, 172 Uhlmann, 116
Scarman Lord, 53, 81 USA, 62, 115, 119, 124, 139, 144, 150, 161
Seale, 30, 96, 147–8 California, 115, 150
Select Committee on Medical Ethics, 54, 90, Kansas, 20
168 Michigan, 32
self-determination, 1, 3–4, 11, 29–30, 36, 95, New York, 14–15, 108
109, 145, 157, 159 Oregon, 14, 63–4, 108
right to, 95, 109
Shakespeare, 101 Van Delden, 147
Shapiro, 162 Van Der Heide, 148
Sheldon (S), 96, 116, 132, 144, 173 Van Der Mass, 147
Sheldon (T), 62 Van Der Wal, 148
Shipman, 12 Van Loon, 152
Shultz, 98 Veatch, 9
Singer, 2–3, 11, 19, 61 Velasquez, 100
Skegg, 20, 41, 83, 86, 111 Voluntary Euthanasia Society, 60, 119, 121–3,
Slevin, 171 144, 148, 158, 170
slippery slope, 12
Slynn Lord, 72 Wade, 40
Smith (C), 107 Wanamaker, 160
Smith (H), 39 Ward J, 130
Smith (N), 160 Warren, 12
social mores, 10 Weir, 61
sophistry, 165 Wells, 28, 37, 65, 84, 102–3
of the courts, 2, 5 Wheat, 97, 102
Springings, 43 Wilkes, 37
Starks, 116 Wilkins, 64, 108
Stern, 132 Wilkinson, 21
Strauss, 152 Williams (A), 43
substituted judgement, 119–20 Williams (G), 9, 15, 58, 65, 101
suicide, 3, 12, 32, 85, 99 Winter, 37
and autonomy, 100–7 withdrawal of nutrition, 27–9, 94
assisted suicide, 12, 14, 29, 31–2, 36, 38, 59, withholding treatment, 44–5
107–10, 113, 166 World Health Organisation, 38, 102
computer assisted suicide, 62–3 wrongful actions, 144
in UK, 101–2
medically assisted suicide, 105 Zinn, 63

Eutanasia 3

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EUTHANASIA, DEATH WITH DIGNITY

AND THE LAW

OXFORD – PORTLAND OREGON

Published in North America (US and Canada) by

Distributed in the Netherlands, Belgium and Luxembourg by

© Hazel Biggs 2001

Hart Publishing Ltd is a specialist legal publisher based in Oxford, England.

Typeset by Hope Services (Abingdon) Ltd.

Introduction: Medicine Men, Outlaws and Voluntary Euthanasia 1

1. To Kill or not to Kill; is that the Euthanasia Question? 9

2 . Euthanasia and Clinically assisted Death: from Caring to Killing? 35

3. Consent to Treatment but Not to Death 69

4. Autonomy, Self-determination and Self-destruction 95

5. Living Wills and the Will to Die 115

This is My Will 121

6. Is Euthanasia a Dignified Death? 145

7. Conclusions: Dignified Life, Dignified Death and Dignified Law 165

Select Bibliography 175

E, Re [1993] 1 Fam Law Rep 386.............................................................130–1

R (A Minor)(Wardship: Medical Treatment),

Salgo v. Leland Stanford Junior University Board of Trustees

Suicide Act 1961.........................................................................................100

Press, 1999) at 158.

giving the medication appear to be focused only on the good consequences,

Social Science and Medicine 73–81.

Physician Assisted Suicide (Harvard, Harvard University Press, 1998).

INTRODUCTION — WHY EUTHANASIA ?

Still poised on the Fulcrum of Homicide” [1996] Crim L R 878–88.

1 All ER 821, and Frenchay NHS Trust v. S [1994] 2 All ER 403.

or incurable disease, the effects of trauma, or simply the degeneration associated

discussed in detail in ch. 2.

Living Things (Oxford, Clarendon Press, 1997) at 187.

sent, which causes that person’s death.

Canada, Protection of Life Series Study Paper, 62.

There is no statutory definition of death in the United Kingdom, although the

allocate criminal responsibility for causing the death, or to absolve professional

suffered multiple skull fractures and concomitant brain damage. Ms Wilkinson

It is perhaps understandable that a Court convened to hear a case concerning

Death” (1979) 1 British Medical Journal 332.

clinically dead they were repeated by a second consultant, a paediatric neurolo-

The Law Lords concluded that:

Cognitive death is not therefore a state presently recognised as death by medi-

voluntary euthanasia is clearly an example. Voluntary euthanasia therefore

75 R v. Cox (1992) 12 BMLR 38.

Law 65, at 73.

EUTHANASIA AS DEATH WITH DIGNITY

Human dignity is a descriptive and value-laden quality encompassing self-

and burdensome to family and society.84 Patient autonomy, self-determination

humane, and therefore perhaps more dignified, than hanging or gassing.

Decisions in Health Care (Chichester, Wiley, 1993) at 97.

be achieved. The ability to exercise choice, patient autonomy, the practical

lowing discussion of assisted suicide.

or clinical judgements. Tensions are most likely to occur in clinical situations

Law 65, at 65.

sanction. In practice compromises are frequently necessary to maximise the right

THE INDEFINITE CONTINUATION OF PALLIATIVE TREATMENT

The terms “palliative care” and “palliative medicine” describe a treatment

(1998) 24 Journal of Medical Ethics 149.

condition as possible and complying, wherever feasible, with the patient’s

sented at The City of Westminster Law Society, 13 April 2000.

State”, (1977) 40 Journal of Neurology, Neurosurgery, and Psychiatry 876.

Retrospective Study in a Rehabilitation Unit” (1996) 313 BM J 13–16.

Similar views about degenerating quality of life are sometimes expressed by